DOE v. BOYERTOWN AREA SCHOOL DISTRICT et al

Filing 68

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/25/17. 8/25/17 ENTERED AND COPIES E-MAILED.(td, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOEL DOE, a minor, by and through his
guardians, JOHN DOE and JANE DOE;
MARY SMITH; JACK JONES, a Minor,
by and through his parents, JOHN JONES
and JANE JONES; and MACY ROE,
Plaintiffs,
v.
BOYERTOWN AREA SCHOOL
DISTRICT; DR. RICHARD FAIDLEY, in
his official capacity as superintendent of the
Boyertown Area School District; DR.
BRETT COOPER, in his official capacity as
principal; and DR. E. WAYNE FOLEY, in
his official capacity as assistant principal,
Defendants,
and
PENNSYLVANIA YOUTH CONGRESS
FOUNDATION,
Intervenor-Defendant.

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CIVIL ACTION NO. 17-1249

MEMORANDUM OPINION
Smith, J.

August 25, 2017

The current issue before the court – whether the court should issue a preliminary
injunction prohibiting a school district from maintaining its practice that started in the 2016-17
school year of allowing transgender students to use the bathrooms and locker rooms of the sex to
which they identify – involves intricate and genuine issues relating to, inter alia, the personal
privacy of high school students, a school district’s discretion and judgment relating to the
conduct of students in its schools, the meaning of the word “sex” in Title IX, and the rights of all

students to complete access to educational opportunities, programs, and activities available at
school. The general issue of transgender persons’ access to privacy facilities such as bathrooms
has recently received nationwide attention, and the issue of transgender students’ access to
educational institutions’ bathrooms and locker rooms aligning to their gender identity has
spurred litigation with unsurprisingly inconsistent results.

With regard to cases involving

transgender students, they have generally centered on whether precluding transgender students
from using facilities consistent with their gender identity violates those students’ rights under the
Equal Protection Clause of the Fourteenth Amendment or Title IX. And as to Title IX, which
generally precludes public schools receiving federal financial assistance from discriminating “on
the basis of sex,” this has resulted in a debate as to whether “sex” refers to biological sex (which
the plaintiffs in this case define as a person’s classification as male or female at birth based on
the presence of external and internal reproductive organs) or a broader and arguably more
contemporary definition of sex that could include sex stereotyping or gender identity.
Here, the court is presented with four students, three who will be seniors for the
upcoming 2017-18 school year and one student who recently graduated, claiming that the
defendant school district’s practice of allowing transgender students (who the plaintiffs choose to
identify as “members of the opposite sex” rather than as transgender students) to access
bathrooms and locker rooms consistent with their gender identity violates (1) their constitutional
right to privacy under the Fourteenth Amendment, (2) their right of access to educational
opportunities, programs, benefits, and activities under Title IX because they are subject to a
hostile environment, and (3) their Pennsylvania common law right of privacy preventing
intrusion upon their seclusion while using bathrooms and locker rooms. The plaintiffs not only
raise concerns with being in privacy facilities with transgender students regardless of whether the

2

transgender students actually view them in a state of partial undress, but they raise concerns with
the possibility of viewing a transgender person in a state of undress or having a transgender
person present to hear them while they are attending to their personal needs while in the
bathroom. At bottom, the plaintiffs are opposed to the mere presence of transgender students in
locker rooms or bathrooms with them because they designate them as members of the opposite
sex and note that, inter alia, society has historically separated bathrooms and locker rooms on
the basis of biological sex to preserve the privacy of individuals from members of the opposite
biological sex.
The plaintiffs now seek a preliminary injunction which would require the school district
to cease its practice and return to the prior practice of requiring all students to only use the
privacy facilities corresponding to their biological sex. The plaintiffs have a heavy burden here
because they are not seeking to preserve the status quo that has existed since the start of the
2016-17 school year and instead are seeking to have the school district cease its current practice.
The court has thoroughly reviewed all evidence in the record and has considered the
parties’ well-articulated arguments in support of their respective positions. After reviewing the
entire record, the court finds that the plaintiffs are not entitled to preliminary injunctive relief
because they have not shown that they are likely to succeed on the merits on any of their causes
of action and they have failed to show irreparable harm. Accordingly, the court will deny the
plaintiffs’ motion for a preliminary injunction.
I.

SUBJECT-MATTER JURISDICTION

The court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343,
and 1367. 1

1

In the amended complaint, the plaintiffs reference 28 U.S.C. § 1361, the federal Mandamus Act, as a possible basis
for subject-matter jurisdiction over this action against a school district and three school district administrators. It

3

II.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2). 2
III.

PROCEDURAL HISTORY

The initial plaintiff in this matter, Joel Doe, a minor, by and through his guardians, John
Doe and Jane Doe, commenced this action on March 21, 2017, by filing (1) a complaint against
the defendants, Boyertown Area School District (the “School District”), Dr. Richard Faidley, in
his official capacity, Dr. Brett Cooper, in his official capacity, and Dr. E. Wayne Foley, in his
official capacity, and (2) a motion to proceed pseudonymously. Doc. Nos. 1-4. On April 3,
2017, Aidan DeStefano, who was then a senior at the Boyertown Area Senior High School, and
the Pennsylvania Youth Congress Foundation (“PYC”), a youth-led, statewide LGBTQ advocacy
organization, filed a motion to intervene in this litigation. Doc. No. 7.
On April 18, 2017, the plaintiff filed an amended complaint in which three new plaintiffs
were added to this litigation: (1) Mary Smith, (2) Jack Jones, a minor, by and through his
parents, John Jones and Jane Jones, and (3) Macy Roe. Doc. No. 8. In the amended complaint,
the plaintiffs generally complain that the defendants’ policy and practice of permitting
transgender individuals (who are identified as members of the “opposite sex” instead of being
identified as “transgender”) to use restrooms, locker rooms, and shower facilities designated for
the biological sex to which they identify violates the plaintiffs’ “fundamental right to bodily
privacy contrary to constitutional and statutory principles, including the Fourteenth Amendment,
Title IX, invasion of seclusion [under Pennsylvania state law], and Pennsylvania’s Public School

does not appear that the court has jurisdiction under section 1361 because “by its terms, [section 1361] applies only
to writs issued against an ‘officer or employee of the United States.’” Weaver v. Wilcox, 650 F.2d 22, 25 (3d Cir.
1981) (quoting 28 U.S.C. § 1361). It does not appear that any defendant is an officer or employee of the United
States.
2
Again, the plaintiffs reference 28 U.S.C. § 1391(e) as a basis for venue, but that subsection only pertains to
“[a]ctions where [a] defendant is officer or employee of the United States[.]” 28 U.S.C. § 1391(e). As previously
indicated, it does not appear that the plaintiffs include a claim against an officer or employee of the United States.

4

Code of 1949, which requires separate facilities on the basis of sex.” 3 Amended Compl. at ¶¶ 1,
2, 20, 41. For relief, the plaintiffs seek, inter alia, (1) declarations that the defendants’ policy
and actions (a) violate their constitutional right to privacy, (b) violate the Pennsylvania School
Code of 1949, (c) constitute an unlawful intrusion upon Joel Doe and Jack Jones’s seclusion and
bodily privacy rights, and (d) impermissibly burden their rights under Title IX to be free from
discrimination on the basis of sex by creating a sexually harassing hostile environment, (2) an
injunction “enjoining the District’s policy and ordering the District to permit only females to
enter and use the multi-user girls’ private facilities, including locker rooms and restrooms, and
only males to enter and use the multi-user boys’ private facilities, including locker rooms and
restrooms,” (3) compensatory damages, and (4) costs and attorney’s fees. Id. at 38-39.
With regard to the specific factual allegations pertaining to each plaintiff, Joel Doe
alleges that he was a junior at the Boyertown Area Senior High School on or about October 31,
2016, and was changing in the boys’ locker room for his mandatory physical education course.
Id. at ¶¶ 10, 43, 50. While standing in his underwear and about to put on his gym clothes, he
observed a “member of the opposite sex changing with him in the locker room.” Id. at ¶ 50.
This “member of the opposite sex” was “wearing nothing but shorts and a bra.” Id.
Due to Joel Doe’s “immediate confusion, embarrassment, humiliation, and loss of
dignity,” he “quickly put his clothes on and left the locker room.” Id. at ¶ 51. Joel Doe, along
with other classmates, then went to Dr. Foley, the assistant principal of the Boyertown Area

3

The plaintiffs bring their Fourteenth Amendment claim under 42 U.S.C. § 1983. Amended Compl. at ¶ 2.
Additionally, although the plaintiffs claim that the defendants’ actions violate the Pennsylvania Public School Code
of 1949, there is no specific cause of action for this violation in the amended complaint and it is unclear whether the
Public School Code provides for a private right of action. See Issa v. School Dist. of Lancaster, 847 F.3d 121,141
(3d Cir. 2017) (indicating that there is no express cause of action under the Public School Code, but leaving issue
unresolved as to whether there is an implied right of action). Instead, the amended complaint asserts only causes of
action for violations of the Fourteenth Amendment, Title IX, and Pennsylvania’s common law tort of intrusion upon
seclusion. See generally Amended Compl. at 21-39. The court notes that the plaintiffs sought declaratory relief that
the defendants’ actions violated the School Code. See id. at 38.

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Senior High School, to let him know what happened. Id. at ¶¶ 22, 52. When Joel Doe informed
Dr. Foley that there had been a girl in the locker room, Dr. Foley indicated that although the
legality of this was up in the air, students who mentally identified themselves with the opposite
sex could choose the locker room and bathroom to use because their physical sex did not matter.
Id. at ¶ 53. Dr. Foley also told Joel Doe that there was nothing he could do to protect him from
this situation and that he needed to “‘tolerate’ it and make it as ‘natural’ as he possibly [could].”
Id. at ¶¶ 54-56.
The plaintiffs assert that this action “marginalized and shamed Joel Doe, and unlawfully
attempted to coerce and intimidate [him] into accepting continuing violations of his bodily
privacy.” Id. at ¶ 62. They further assert that the School District’s “directive to Joel Doe was
that he must change with students of the opposite sex and make it as natural as possible and that
anything less would be intolerant and bullying against students who profess a gender identity
with the opposite sex.” Id. at ¶ 61.
Because the School District’s policy of allowing persons of the opposite sex to use the
boys’ facilities causes him anxiety, embarrassment, and stress, Joel Doe has opted to hold his
bladder and refrain from using restrooms as much about possible and, to the extent that he needs
to use the restroom, he stresses about whether he could use a restroom without running into
persons of the opposite sex. Id. at ¶ 63. Thus, the defendants’ policy inhibits him from timely
voiding, which has “direct and adverse physiological effects.” Id. at ¶ 64.
Joel Doe’s parents, John and Jane Doe, separately met with Dr. Foley, Dr. Cooper, and
Dr. Faidley to discuss this issue. 4 See id. at ¶¶ 65-72. They met with Dr. Foley on or about

4

The plaintiffs also allege that Joel Doe was a student for half of the day at the Berks Career and Technology
School – Oley Campus (“BCTS”). Amended Compl. at ¶ 69. The plaintiffs allege that the School District
“marginalized, intimidated, and shamed Joel Doe” by contacting the principal at BCTS to disclose Joel Doe’s
meeting with Dr. Foley over the locker room incident. Id. The BCTS principal then pulled Joel Doe out of class to

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November 2, 2016, and, during this meeting, Dr. Foley informed them that the School District
was “‘all-inclusive’” and that if Joel Doe had an issue with the policy, Dr. Foley would get him
permission to use the nurse’s office to change. Id. at ¶ 66. Mr. and Mrs. Doe then met with Dr.
Cooper, the principal of Boyertown Area Senior High School, and Dr. Cooper told them that he
would not do anything since Joel Doe could change in the nurse’s office if he did not want to
change around people of the opposite sex. Id. at ¶ 67. Ultimately, they met with Dr. Faidley,
who informed them that if Joel Doe was uncomfortable changing under the new policy or with
using the nurse’s office, he could withdraw from school to be home schooled while still
attending BCTS if he wanted. Id. at ¶ 72.
As for Jack Jones, he was also a junior at the Boyertown Area Senior High School for the
2016-17 school year. Id. at ¶ 12. During the first week of November 2016, he was changing in
the locker room for his physical education class and was in his underwear when he saw
classmates gesturing and looking at something behind them. Id. at ¶ 86. Upon turning, he saw a
member of the opposite sex in the locker room with him. Id. He then “experienced immediate
confusion, embarrassment, humiliation, and loss of dignity,” and put on his clothes and exited
the locker room. Id. at ¶ 87.
Jack Jones informed his parents about the incident and his mother, Jane Jones, contacted
and spoke to Dr. Cooper. Id. at ¶ 89. Jane Jones informed Dr. Cooper about the privacy
violation and asked “for such infractions to stop.” Id. Dr. Cooper informed her that the law
required him to permit girls identifying as boys to use the private facilities with her son. Id. at ¶
90. He did not offer any single-user facility for Jack Jones to use as an alternative. Id.

have a conversation with him. Id. at ¶ 70. During this conversation, the BCTS principal told Joel Doe that “‘he
wanted to make sure none of that negativity was going to happen at his school.’” Id.

7

Similar to Joel Doe, Jack Jones feels violated, humiliated, and embarrassed by the
invasion of privacy. Id. at ¶ 91. He also opts to hold his bladder, refrains from using the
restrooms as much as possible, and stresses about whether he can use a restroom without running
into members of the opposite sex. Id. at ¶ 93. This causes him an “ever-present distraction
throughout the day, including during class instructional time.” Id. at ¶ 94.
Concerning Mary Smith, she was a junior at the Boyertown Area Senior High School for
the 2016-17 school year. Id. at ¶ 11. In March 2017, she entered a girls’ bathroom at the high
school and saw a male student washing his hands in the sink. Id. at ¶ 99. After immediately
experiencing shock, confusion, and embarrassment, she went to report the incident to the school
office. Id. at ¶ 104. She eventually was able to report the incident to Dr. Foley, and during her
conversation with him she learned for the first time that the school was permitting members of
the opposite sex to use the girls’ bathrooms. Id. at ¶¶ 105-07. Dr. Foley stated that even though
the student’s sex is male, the student could use the girls’ restrooms and locker rooms because the
student identified as a girl. Id. at ¶ 108. Dr. Foley also indicated that they had not told parents
about this policy, but he noted that they might be working on that. Id. at ¶ 109. Dr. Foley did
not offer Mary Smith the option to use restrooms or locker rooms outside the presence of male
students, such as the nurse’s office. Id. at ¶ 110.
As with the Joel Doe and Jack Jones, Mary Smith “feels violated, humiliated, and
embarrassed by the invasion of her privacy.” Id. at ¶ 112. She also opts to hold her bladder,
refrains from using the restrooms as much as possible, and stresses about whether she can use a
restroom without running into members of the opposite sex. Id. at ¶ 113. This causes her an
“ever-present distraction throughout the day, including during class instructional time.” Id. She
has also alleged that due to the stress and anxiety caused by the new policy and the defendants’

8

actions, she is not returning to the School District for her senior year. Id. at ¶ 117. She would
have returned for her senior year if the School District’s policy was not in place. Id. at ¶ 118.
Regarding the final plaintiff, Macy Roe, she is an 18-year-old girl who was a senior at the
Boyertown Area Senior High School for the 2016-17 school year. Id. at ¶ 13. It does not appear
from the amended complaint that Macy Roe had any direct interaction with a member of the
opposite biological sex in a locker room or restroom; yet, due to the defendants’ policy and
practice, she opts to hold her bladder, refrains from using the restrooms as much as possible, and
stresses about whether she can use a restroom without running into members of the opposite sex.
Id. at ¶ 126. She is also constantly distracted during the school day due to the aforementioned
concerns, and asserts that the policy inhibits her from timely voiding. Id. at ¶ 127.
The plaintiffs filed an amended motion to proceed pseudonymously along with the
amended complaint on April 18, 2017. Doc. No. 9. The plaintiffs then filed the instant motion
for a preliminary injunction on May 17, 2017. Doc. No. 16. The court had a telephone
conference to discuss the amended motion to proceed pseudonymously, the motion to intervene,
and scheduling for the motion for a preliminary injunction on May 19, 2017. On May 24, 2017,
the court entered an order which, inter alia, (1) granted the motion to intervene without objection
insofar as PYC sought to intervene, (2) provided the parties with additional time to submit briefs
on the motion to intervene by Aidan DeStefano insofar as the plaintiffs opposed his motion to
intervene, (3) granted the amended motion to proceed pseudonymously without objection, (4)
provided the parties with deadlines for filing submissions relating to the motion for a preliminary
injunction, and (5) directed the parties to immediately commence with discovery related to the
motion for a preliminary injunction. Order, Doc. No. 29.

9

PYC filed an answer to the amended complaint on May 26, 2016. Doc. No. 30. On the
same date, PYC and Aidan DeStefano filed a supplemental memorandum in support of Aidan
DeStefano’s motion to intervene. Doc. No. 31. The plaintiffs then filed a brief in opposition to
Aidan DeStefano’s motion to intervene on June 2, 2017. Doc. No. 32.
The defendants and PYC separately filed memoranda of law in opposition to the motion
for a preliminary injunction on June 9, 2017. Doc. Nos. 33, 34. The plaintiffs then filed a reply
brief in support of the motion for a preliminary injunction on June 16, 2017. Doc. No. 36.
On July 13, 2017, the plaintiffs filed a motion to present the testimony of Joel Doe and
Mary Smith in camera during the evidentiary hearing on July 17, 2017. 5 Doc. No. 45. The
parties then separately filed proposed findings of fact and conclusions of law on July 14, 2017.
Doc. Nos. 46-48. PYC filed a response to the plaintiffs’ motion to present testimony in camera
on July 15, 2017. 6 Doc. No. 49.
The court held evidentiary hearings in this matter on July 17, 2017, and July 31, 2017.
On July 17, 2017, the plaintiffs presented the live testimony of Joel Doe and Mary Smith, and
PYC presented the live testimony of its expert, Dr. Scott Leibowitz, and Aidan DeStefano. On
July 31, 2017, the court heard the continued testimony of Dr. Leibowitz (via videoconferencing)
and also heard live testimony from Dr. Cooper.

Throughout the proceedings, the parties

additionally provided the court with, inter alia, numerous exhibits, deposition transcripts of all
four plaintiffs (including trial depositions of Macy Roe and Jack Jones) and other witnesses
including Dr. Foley, Dr. Cooper, Dr. Faidley, and Dr. Leibowitz.
5

Although omitted from the main text of the procedural history in this matter, the defendants filed a motion to
dismiss the amended complaint and supporting memorandum of law on June 16, 2017. Doc. Nos. 38, 39. The
plaintiffs filed a memorandum in opposition to the motion on June 30, 2017, and the defendants filed a reply brief in
support of their motion on July 7, 2017. Doc. No. 41, 43.
6
The court resolved this motion by clearing the courtroom and providing members of the public, including members
of the press, with the opportunity to hear the testimony (except where necessary to protect the plaintiffs’ anonymity)
in the undersigned’s chambers as the court’s audio system allows for court proceedings to be heard in chambers.

10

The parties separately filed supplemental findings of fact and conclusions of law on
August 10, 2017. Doc. Nos. 57-59. The court then heard oral argument on the motion for a
preliminary injunction on August 11, 2017. 7
During the oral argument, the plaintiffs’ objected to exhibit 1 to the School District
defendants’ supplemental proposed findings of fact and conclusions of law insofar as they had
attached purported public school district policies referencing transgender students.

At the

plaintiffs’ request, the court provided them with an opportunity to submit a memorandum of law
in support of their objection, and the plaintiffs filed a motion to strike this exhibit on August 16,
2017. Doc. No. 63. On the same date, the School District defendants filed a response in
opposition to the motion to strike. Doc. No. 64.
On August 17, 2017, PYC submitted a supplement to its proposed findings of fact and
conclusions of law in which it seeks to have the court consider the Amici Curiae brief submitted
by school administrators from 33 states and the District of Columbia in support of the
plaintiff/appellant in G.G. ex rel. Grimm v. Gloucester County School Board, No. 15-2056 (4th
Cir. 2015).

Doc. No. 65.

On the same date, the plaintiffs filed a response to PYC’s

supplemental submission. Doc. No. 66.
IV.

FINDINGS OF FACT

After carefully considering all of the evidence presented during the evidentiary hearings
on July 17, 2017, and July 31, 2017, and the evidence introduced and admitted before the court
closed the evidentiary record on August 11, 2017, after assigning such weight to the evidence as

7

During oral argument, the parties indicated that they were submitting the various depositions as evidence without
designations, and they also submitted (1) unredacted and redacted transcripts of the evidentiary hearings, (2)
unredacted and redacted transcripts of the plaintiffs’ depositions and trial depositions, (3) Dr. Faidley’s deposition
transcript, (4) the plaintiffs’ redacted interrogatory responses, (5) a redacted November 16, 2016 email from Jane
Doe, and (6) a redacted report relating to Mary Smith. The parties also provided the court with a stipulation of facts.

11

the court deemed proper and disregarding the testimony that the court found to lack credibility,
the pertinent facts are as follows:
A.

The School District Defendants, the School District’s Practice, and the Facilities at
the Boyertown Area Senior High School
1.

The defendant, the Boyertown Area School District (the “School District”), is

organized under the laws of the Commonwealth of Pennsylvania, and includes public
educational institutions that provide students a kindergarten through twelfth grade education.
Amended Compl. at ¶¶ 14, 15, Doc. No. 8.
2.

The School District receives “Federal financial assistance” potentially subjecting

it to the requirements of Title IX. Plaintiffs’ Ex. P-42, Resp. to Pls.’ First Set of Reqs. for
Admis. to Defs. (“School Dist. Resp. to Requests for Admis.”) at ¶ 1.
3.

The School District is an “educational institution” as defined under Title IX of the

Education Amendments Act of 1972, 20 U.S.C. § 1681. School Dist. Resp. to Requests for
Admis. at ¶ 2.
4.

The School District’s Board of Directors (the “School Board”) establishes official

policies for the School District. Transcript of Evidentiary Hr’g on July 31, 2017 (“7-31-17 Tr.”)
at 108.
5.

The defendant, Dr. Richard H. Faidley, who has been working in the education

field since 1990, served as the Superintendent of Schools for the School District from August
2013 until resigning as Superintendent no later than July 25, 2017. June 21, 2017 Dep. of Dr.
Richard H. Faidley (“Faidley Dep.”) at 12; 7-31-17 Tr. at 107. 8

8

Although the School District defendants indicate in their second set of proposed findings of fact and conclusions of
law that Dr. Faidley resigned as Superintendent on July 17, 2017, effective July 18, 2017, see Defendants’ Second
Set of Proposed Findings of Fact and Conclusions of Law Regarding Pls.’ Mot. for Prelim. Inj. (“Defs.’ Findings
and Conclusions”) at 2, ¶ 2, the court could not locate this fact in the record. Instead, the only fact relating to the

12

6.

The defendant, Dr. Brett A. Cooper, is the Principal of the Boyertown Area

Senior High School (“BASH”), and has worked in this role for the past eight-and-a-half years.
7-31-17 Tr. at 106, 130. Prior to becoming Principal at BASH, Dr. Cooper was an Assistant
Principal at BASH for three-and-a-half years.

July 7, 2017 Dep. of Dr. Brett A. Cooper

(“Cooper Dep.”) at 18.
7.

There were 1659 students at BASH during the 2016-17 school year. June 21,

2017 Dep. of Dr. E. Wayne Foley (“Foley Dep.”) at 15.
8.

As Principal of BASH, Dr. Cooper is responsible for all of BASH’s operations,

including, inter alia, responding to inquiries by parents, guardians, and community members,
having final decision over disciplinary matters, supervising staff and faculty, implementing the
curriculum approved by the School Board, and establishing, in conjunction with the School
District office lead by the Superintendent, practices and procedures affecting BASH students.
Cooper Dep. at 20, 21.
9.

Dr. Cooper reports directly to School District Assistant Superintendent of

Operations Rob Scoboria (“Assistant Superintendent Scoboria”). Cooper Dep. at 21; 7-31-17 Tr.
at 106.

Dr. Cooper often communicates with Assistant Superintendent Scoboria about

operations, policies, and special education issues involving BASH. Cooper Dep. at 22, 23.
10.

Assistant Superintendent Scoboria reports directly to Dr. Faidley. Cooper Dep. at

11.

BASH has grade-level Assistant Principals who report directly to Dr. Cooper.

21.

Cooper Dep. at 23; 7-31-17 Tr. at 110-11.

date of resignation is that it appears that the School Board named an Interim Superintendent, David Krem, to replace
Dr. Faidley on July 25, 2017. See 7-31-17 Tr. at 107.

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12.

One of the BASH Assistant Principals is Dr. E. Wayne Foley, who is assigned to

the graduating class of 2018. Cooper Dep. at 24; Foley Dep. at 11, 12. Dr. Foley has served in
this role since April 30, 2012. Foley Dep. at 11.
13.

Dr. Cooper meets regularly with the BASH Assistant Principals. Cooper Dep. at

14.

Prior to the 2016-17 school year, BASH students were to use the locker room or

24.

bathroom aligning with their biological sex. 7-31-17 Tr. at 131; Faidley Dep. at 34, 40.
15.

BASH students were previously separated on the basis of their biological sex in

part to protect their personal privacy and safety from members of the opposite sex while using
bathrooms and locker rooms. 7-31-17 Tr. at 131, 132; Cooper Dep. at 35; Foley Dep. at 23, 24,
26, 53-54.
16.

Under this practice, BASH administration would have disciplined and, in fact,

disciplined, any students if they entered the opposite biological sex’s bathroom or locker room.
Foley Dep. at 24, 25; 7-31-17 Tr. at 112; Cooper Dep. at 31.
17.

In the 2014-15 school year, a school counselor communicated to Dr. Cooper that

Aidan DeStefano (“DeStefano”), a tenth grade student and biological female who was
identifying as a male, i.e. a transgender male, was uncomfortable using the girls’ bathrooms at
BASH. Cooper Dep. at 75-78; see also Faidley Dep. at 25, 26, 27.
18.

Dr. Cooper discussed this request, and the possibility of DeStefano using the

single-user facility in the nurse’s office, with Assistant Superintendent Scoboria. 7-31-17 Tr. at
109.

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19.

The School District allowed DeStefano to use a private, single-user facility in the

nurse’s office for restroom and changing purposes. Cooper Dep. at 79; Faidley Dep. at 28;
Transcript of Evidentiary Hr’g on July 17, 2017 (“7-17-17 Tr.”) at 216, 217.
20.

On May 13, 2016, the United States Department of Justice, Civil Rights Division,

and the United States Department of Education, Office for Civil Rights, issued a “Dear
Colleague Letter on Transgender Students” (the “May 2016 Dear Colleague Letter”).
Defendants’ Mem. in Opp. to the Mot. for Prelim. Inj. at Ex. 2, Doc. No. 34-2.
21.

The May 2016 Dear Colleague Letter stated, inter alia, that Title IX’s prohibition

of “sex discrimination in educational programs and activities operated by recipients of Federal
financial assistance . . . encompasses discrimination based on a student’s gender identity
including discrimination based on a student’s transgender status.” May 2016 Dear Colleague
Letter at 1.
22.

The May 2016 Dear Colleague Letter indicated, inter alia, that the Department of

Justice and Department of Education “have determined that this letter is significant guidance.”
May 2016 Dear Colleague Letter at 1 (emphasis in original; footnote omitted).
23.

The May 2016 Dear Colleague Letter stated, inter alia, as follows:

The Departments treat a student’s gender identity as the student’s sex for purposes
of Title IX and its implementing regulations. This means that a school must not
treat a transgender student differently from the way it treats other students of the
same gender identity. The Departments’ interpretation is consistent with courts’
and other agencies’ interpretations of Federal laws prohibiting sex discrimination.
The Departments interpret Title IX to require that when a student or the student’s
parent or guardian, as appropriate, notifies the school administration that the
student will assert a gender identity that differs from previous representations or
records, the school will begin treating the student consistent with the student’s
gender identity. Under Title IX, there is no medical diagnosis or treatment
requirement that students must meet as a prerequisite to being treated consistent
with their gender identity. Because transgender students often are unable to
obtain identification documents that reflect their gender identity (e.g., due to
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restrictions imposed by state or local law in their place of birth or residence),
requiring students to produce such identification documents in order to treat them
consistent with their gender identity may violate Title IX when doing so has the
practical effect of limiting or denying students equal access to an educational
program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex
requires schools to provide transgender students equal access to educational
programs and activities even in circumstances in which other students, parents, or
community members raise objections or concerns. As is consistently recognized
in civil rights cases, the desire to accommodate others’ discomfort cannot justify a
policy that singles out and disadvantages a particular class of students.
May 2016 Dear Colleague Letter at 2 (footnotes omitted).
24.

With regard to “Sex-Segregated Activities and Facilities,” the May 2016 Dear

Colleague Letter stated in pertinent part as follows:
Title IX’s implementing regulations permit a school to provide sex-segregated
restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as
single-sex classes under certain circumstances. When a school provides sexsegregated activities and facilities, transgender students must be allowed to
participate in such activities and access such facilities consistent with their gender
identity.
[] Restrooms and Locker Rooms. A school may provide separate facilities on
the basis of sex, but must allow transgender students access to such facilities
consistent with their gender identity. A school may not require transgender
students to use facilities inconsistent with their gender identity or to use
individual-user facilities when other students are not required to do so. A school
may, however, make individual-user options available to all students who
voluntarily seek additional privacy.
May 2016 Dear Colleague Letter at 3 (footnotes omitted).
25.

The School District’s receipt and awareness of the May 2016 Dear Colleague

Letter prompted its administration, through consultation with the School District’s solicitor, to
first discuss the use of the locker rooms and bathrooms by transgender students. Faidley Dep. at
24, 25; Foley Dep. at 18, 19, 20. 9

9

Dr. Faidley referred to the May 2016 Dear Colleague Letter as an “Executive Order.” Faidley Dep. at 24, 25.

16

26.

The School District’s administration, in conjunction with consultation with the

solicitor, treated the May 2016 Dear Colleague Letter as the “law of the land” and decided to
follow it. Faidley Dep. at 41; Foley Dep. at 21.
27.

The School District understood the direction by the Departments of Justice and

Education required it to permit transgender students to use the restrooms and locker rooms
aligned with their gender identity. 7-31-17 Tr. at 109; Faidley Dep. at 24-25.
28.

Based on the May 2016 Dear Colleague Letter and consultation with the School

District’s solicitor, since the beginning of the 2016-17 school year, the School District has, upon
request, permitted transgender students to use restrooms and locker rooms aligned with their
gender identity on a case-by-case basis. 7-31-17 Tr. at 108-10; Faidley Dep. at 23, 24, 25, 34,
83; Cooper Dep. at 84; Plaintiffs’ Ex. P-49, Boyertown Area Sch. Dist. Frequently Asked
Questions About Issues Regarding Doe vs. BASD (“BASD FAQ”).
29.

The School District employs a case-by-case approach because “[t]here are

different contexts. Some students are at the beginning stages, some students are at the stage
where they’re going through surgical procedures. . . . Some students . . . want to use the locker
room and restroom facilities of their gender identity. Some students would prefer to use a
private environment.” Faidley Dep. at 83-84.
30.

The School District’s practice concerning transgender students and its

implementation and the criteria the School District uses in reaching a decision have not been
reduced to writing. Faidley Dep. at 24; 7-31-17 Tr. at 138.
31.

Prior to the 2016-17 school year, Dr. Cooper was unaware of any BASH

transgender student requesting to use a locker room or restroom consistent with their gender
identity rather than their biological sex. 7-31-17 Tr. at 108, 109.

17

32.

At the start of the 2016-17 school year, DeStefano requested to cease using the

single-user facility at the nurse’s office and start using the boys’ multi-user privacy facilities.
Cooper Dep. at 80.
33.

Upon receiving this request, Dr. Cooper consulted with DeStefano’s school

counselor and Assistant Superintendent Scoboria. Cooper Dep. at 80, 81. Additionally, the
School District’s administration, including Dr. Faidley, and the School District’s solicitor,
discussed the request. Faidley Dep. at 29, 30, 31.
34.

After discussions between the School District’s central administration, including

Dr. Faidley and Assistant Superintendent Scoboria, and the solicitor, Assistant Superintendent
Scoboria informed Dr. Cooper that in light of the May 2016 Dear Colleague Letter, BASH
should allow students who identify with the opposite sex to use the privacy facilities of the
gender in which they identify if that makes them more comfortable. Faidley Dep. at 31; Cooper
Dep. at 107, 108.
35.

The School District approved DeStefano’s request to use the boys’ multi-user

privacy facilities. Cooper Dep. at 88-89.
36.

Dr. Cooper communicated the decision allowing DeStefano to use the boys’

privacy facilities to his administrative team. Cooper Dep. at 109, 110.
37.

During the 2016-17 school year, the School District, through Dr. Cooper, granted

permission to another transgender male (Student A) permission to use the boys’ restrooms and
locker rooms, and one transgender female (Student B) to use the girls’ restrooms because those
facilities were aligned with their gender identity. Cooper Dep. at 86-93.
38.

During the 2016-17 school year, three other transgender male students (Students

FF, GG, and HH) requested permission and received permission to use different first names

18

aligned with their gender identity, and to be addressed by male pronouns. 10 Cooper Dep. at 94103.
39.

Thus, during the 2016-17 school year, BASH had six students who acknowledged

identifying with the opposite biological sex. Foley Dep. at 21; Cooper Dep. at 86-103.
40.

Dr. Cooper expects three of the six students to return to BASH for the 2017-18

school year. 7-31-17 Tr. at 111. The other three students have graduated from BASH. Id.
41.

Before the School District grants permission to a transgender student to use the

restrooms and/or locker rooms consistent with the student’s gender identity, the student has
discussed the student’s situation and desire with the student’s school guidance counselor, the
counselor has discussed this issue with the grade-level assistant principal, and the counselor and
the grade-level assistant principal have conferred with Dr. Cooper. Foley Dep. at 55, 56; School
Dist.’s Interrogs. Resps. at p. 6; 7-31-17 Tr. at 144; Cooper Dep. at 83; Faidley Dep. at 23, 24.
Thus, the decision to grant a request by a transgender student to use the privacy facilities
consistent with the student’s gender identity is “not just a spur of the moment thing,” and is not
“automatic” upon receiving the request. Cooper Dep. at 83; 7-31-17 Tr. at 144, 148.
42.

The School District attempts to make every BASH student, including transgender

students, comfortable. 7-31-17 Tr. at 138, 139; see also Faidley Dep. at 63 (indicating that the
School District’s practice is “that any student, regardless of whether they’re transgender or
cisgender, would work with the Administration to provide . . . them an area where they could
feel comfortable.” Faidley Dep. at 63.
10

During his deposition, Dr. Cooper did not recall whether these three students requested to use the locker room or
restrooms corresponding to their gender identity. See Cooper Dep. at 94-103. During the evidentiary hearing, Dr.
Cooper stated that these students requested to use privacy facilities consistent with their gender identity. 7-31-17 Tr.
at 109-11. In the School District defendants’ responses to the plaintiffs’ first set of interrogatories, they did not
indicate that they gave permission to Students FF, GG, and HH to use the bathrooms and locker room of the gender
in which they identify. See Plaintiffs’ Ex. P-41, Objs. and Resps. to Pls.’ First Set of Interrogs. to Defs. (“School
Dist.’s Interrogs. Resps.”) at pp. 5-6. Based on this additional evidence, the court has not found that Students FF,
GG, and HH received permission to use the boys’ locker room and bathrooms during the 2016-17 school year.

19

43.

A student does not need to dress or groom in a particular manner consistent with

the stereotypes of a particular sex for the School District to permit that student to use a particular
privacy facility. 7-31-17 Tr. at 139; Faidley Dep. at 80, 81. The student also does not need to
change the student’s name, have surgery, or receive hormone treatments. 7-31-17 Tr. at 138,
139, 140; Cooper Dep. at 115.
44.

When deciding whether to allow a student identifying with the opposite sex to use

privacy facilities consistent with the student’s gender identity, the School District is primarily
concerned with what makes the requesting student comfortable. Cooper Dep. at 114-15.
45.

None of the School District administrators are able to determine whether a student

is gender nonconforming or gender dysphoric, and they cannot determine a student’s gender
identity. 7-31-17 Tr. at 130. Instead, they rely on the reporting by the student. 7-31-17 Tr. at
131.
46.

To date, the School District has not turned down a request by a transgender

student to use a privacy facility corresponding to the student’s gender identity. 7-31-17 Tr. at
140.
47.

The School District did not initially inform parents or students of the decision to

change the existing practice and permit transgender students at BASH to use facilities of the
gender corresponding to their gender identity. 7-31-17 Tr. at 134; Faidley Dep. at 46, 47; Foley
Dep. at 30; Cooper Dep. at 29.
48.

The School District’s decision to change the existing practice to allow transgender

students, if requested, to go into the locker room or bathroom facility corresponding to their
gender identity was not made in conjunction with the School Board. Faidley Dep. at 38, 43, 44.

20

49.

Prior to changing the practice at the School District with respect to transgender

students’ use of privacy facilities, the School District had not received complaints from students
about sharing privacy facilities with persons of the same biological sex who identify with the
opposite sex. 7-31-17 Tr. at 136; Faidley Dep. at 54; Foley Dep. at 28, 29. Thus, complaints
from students were not part of the basis for the School District changing its practice. 7-31-17 Tr.
at 136.
50.

Dr. Cooper is unaware of any instance where a transgender male student went into

the boys’ bathroom or locker room without first obtaining permission from Dr. Cooper. Cooper
Dep. at 97, 98.
51.

Students who have not requested and received permission from the School

District to use restrooms aligned with their gender identity are not allowed to use the restrooms
or locker rooms of the opposite biological sex. 7-31-17 Tr. at 112; Foley Dep. at 37. If a student
was to enter an opposite-sex restroom without permission and the administration was able to
identify the offending student, the offending student would face consequences for doing so. 731-17 Tr. at 112, 131, 132. On five to ten occasions during Dr. Cooper’s tenure, BASH students
have wrongfully entered the opposing biological sex’s locker room. Id. at 112.
52.

Dr. Cooper is unaware of any BASH student who has requested to use a privacy

facility corresponding to the student’s gender identity who was not already using an initial or a
name that is aligned with the student’s gender identity. 7-31-17 Tr. at 144.
53.

Dr. Cooper is unaware of any transgender male student who has asked to use the

boys’ facilities who grooms and dresses like a stereotypical girl; similarly, he is unaware of any
transgender female student who has asked to use the girls’ facilities who grooms and dresses like
a stereotypical boy. 7-31-17 Tr. at 144, 145.

21

54.

Dr. Cooper is unaware of any transgender student at BASH who did not at first

avoid using the facilities corresponding with the student’s biological sex and then used the
single-user facilities, before requesting to use the facilities corresponding with the student’s
gender identity. 7-31-17 Tr. at 145.
55.

Simply because a BASH student has requested and obtained a name change to

correspond with the gender identity of the student does not mean that this student is precluded
from using the facility consistent with the student’s biological sex. 7-31-17 Tr. at 142, 143.
56.

If a BASH student changes for gym (or “physical education”) class, the student is

expected to store belongings in a gym locker or in their hall locker (depending on the proximity
of the student’s hall locker to the gymnasium). Cooper Dep. at 43. In general, students are
permitted to bring their personal belongings into the gymnasium during class, but only if they are
not changing for class. Cooper Dep. at 43.
57.

BASH students are not assigned lockers in the locker room and, to the extent that

the student desires to secure belongings in the locker room, the student must bring in a lock to
secure it. Cooper Dep. at 43.
58.

BASH has undergone significant renovations over the past one to two years.

Cooper Dep. at 35-38, 41-42; Faidley Dep. at 18, 19, 21.
59.

The renovations to the existing locker rooms started in May 2016 and concluded

at the end of October 2016. Cooper Dep. at 41-42; Faidley Dep. at 18, 19, 21. Both locker
rooms received similar renovations. Faidley Dep. at 20.
60.

During the locker room renovation period, BASH students were not required to

dress for gym class. Cooper Dep. at 42.

22

61.

During the renovations, the showers in the locker rooms were changed from

“gang showers” to single-user showers which have curtains for privacy. 7-31-17 Tr. at 125-26;
Cooper Dep. at 44; Faidley Dep. at 18. Each locker room now contains four shower stalls. 7-3117 Tr. at 126.
62.

The School District changed the shower areas of the locker rooms to individual

shower stalls in part to provide for more privacy for BASH students and to allow the School
District to allocate space elsewhere as the BASH shower rooms were infrequently used for
showering and, as such, space was better used elsewhere. Cooper Dep. at 44, 45; Faidley Dep. at
20, 22.
63.

Very few, if any, BASH students, take showers after gym class. Faidley Dep. at

19; June 28, 2017 Dep. of Joel Doe (“Joel Doe Dep.”) at 73; June 28, 2017 Dep. of Mary Smith
(“Mary Smith Dep.”) at 37-38; 7-17-17 Tr. at 58; June 29, 2017 Dep. of Jack Jones (“Jack Jones
Dep.”) at 35, 47, 142; June 29, 2017 Dep. of Macy Roe (“Macy Roe Dep.”) at 39, 40, 44.
64.

The renovations included moving the lockers in the locker room to the outside

walls and creating a large open space in the common area of the locker rooms. Cooper Dep. at
38-39; Pls.’ Exs. P1-P5, P-55; 7-17-17 Tr. at 87-88.
65.

In addition to the lockers around the perimeter of the common room of the locker

room, there is a support wall with a row of approximately 24 lockers the lies in the middle of the
common area of the boys’ locker room. Pls.’ Exs. P-1, P-2, P-4, P-55.
66.

The renovations included the addition of several bathrooms – multi-user and

single-user – for both students and staff. 7-31-17 Tr. at 118-22; Defs.’ Exs. D-53, D-54.

23

67.

All of the multi-user bathrooms at BASH have individual toilet stalls, each with a

locking door for privacy. 7-31-17 Tr. at 118-19; Faidley Dep at. 16, 17; Joel Doe Dep. at 114;
Mary Smith Dep. at 47-48.
68.

There are approximately six to eight multi-user bathrooms for male students at

BASH, and there is a similar number for female students. Faidley Dep. at 16.
69.

The boys’ and girls’ locker rooms at BASH have individual bathroom stalls and

shower stalls with curtains. Cooper Dep. at 40; Mary Smith Dep. at 48.
70.

The individual toilet stalls in the boys’ locker room have doors on them with

functioning locks. Joel Doe Dep. at 202, 203.
71.

The multi-user bathrooms are marked with signs using the universal symbols for

men and women and/or the words “boys” or “girls.” Cooper Dep. at 60, 69, 70, 71; see also
Faidley Dep. at 14-15 (indicating that the BASH bathrooms have signs identifying the sex of the
students permitted to use them).
72.

Dr. Cooper agreed that toilet stalls, urinal dividers, and shower stalls provide

some privacy from persons of the opposite sex. 11 7-31-17 Tr. at 132; Cooper Dep. at 123, 124.
73.

The renovations included placing toilet dividers between urinals and toilet stalls

in the new facilities. Cooper Dep. at 39-40. To the extent that the urinals in the existing boys’
rooms did not have dividers, the renovations did not add dividers. Id. at 45, 46. For the new
boys’ multi-user bathrooms, there are individual stalls and the urinals in these bathrooms have
dividers between them. Id. at 68, 69.

11

The plaintiffs’ sought a finding of fact that the School District agreed that these items would “provide some added
personal privacy from members of the same sex.” Plaintiffs’ Supp. Findings of Fact and Conclusions of Law at ¶
149 (emphasis added), Doc. No. 57. The only testimony about those items providing privacy protection from the
same sex pertained to toilet stalls. See 7-31-17 Tr. at 132. Nonetheless, it is obvious that toilet stalls, urinal
dividers, and shower stalls would provide some level of privacy from anyone regardless of their sex.

24

74.

Although prior to the 2016-17 school year only grades ten through twelve

attended school at BASH, after the renovations, BASH will include ninth through twelfth grades
in 2017-18. 7-31-17 Tr. at 107.
75.

For the upcoming 2017-18 school year, there are eight potential single-user

bathrooms available for use by BASH students. 7-31-17 Tr. at 119, 120, 121, 122 & Defs.’ Exs.
D-53, D-54.
76.

Approximately three or four of those eight single-user facilities are available

depending on the business of the student at the time; for example, there is a single-user bathroom
at the attendance office that would be available for anyone with business at the attendance office.
7-31-17 Tr. at 119, 121, 122 & Defs.’ Ex. D-54.
77.

For the upcoming 2017-18 school year, there are two locker rooms (one for boys,

one for girls) available for the BASH students’ physical education classes. 7-31-17 Tr. at 122,
123; Defs.’ Ex. D-54; Cooper Dep. at 39, 40. Each locker room contains a team room, and a
student could potentially change their clothes in the team rooms without being viewed by other
students. 7-31-17 Tr. at 123. The team rooms contain lockers for students to potentially store
their belongings. Id.
78.

BASH has two additional locker rooms, which also contain team rooms. 7-31-17

Tr. at 124; Defs.’ Ex. D-54. Students changing in the team rooms would not have to pass
through the main locker rooms to get to the gymnasium. 7-31-17 Tr. at 124. The team rooms
have lockers where students could potentially store their belongings. Id.
79.

The farthest team room is located approximately 150 feet (and down the hallway)

from the gymnasium. 7-31-17 Tr. at 124.

25

80.

No BASH student is required to change clothes in a multi-user locker room;

instead, if a student at BASH does not feel comfortable changing in a locker room with a
transgender student, the uncomfortable student does not have to change in the locker room. 731-17 Tr. at 124-25. The School District would allow the uncomfortable student to use one of
the single-user facilities to change clothes. 12 Id. at 125. These facilities are equally available to
transgender or cisgender (an individual that is not transgender) students if they feel
uncomfortable changing in the locker room. Id. at 141, 142, 147.
81.

There is a single-user bathroom facility located approximately 70 feet from the

gym. 7-31-17 Tr. at 146. If a BASH student chose to change in this room, the student could
store any belongings with the gym teacher. Id. at 146. The School District plans on placing a
locker inside this single-user facility. Id. at 148.
82.

There is also a single-user facility in the nurse’s office (which is in a new location

for the 2017-18 school year), and the School District also plans on placing a locker in this singleuser facility. 7-31-17 Tr. at 148, 149; Defs.’ Ex. D-54.
83.

Students have been able to use the single-user bathroom in the nurse’s office with

the permission of the nurse. Cooper Dep. at 62, 63, 67.
84.

The School District also plans on placing a locker in the single-user facilities

located where the old nurse’s office was located and in the “600s” area of BASH. 7-31-17 Tr. at
148, 149; Defs.’ Exs. D-53, D-54.

12

During the evidentiary hearing, Dr. Cooper testified that uncomfortable students could also change in the team
rooms which are located inside of the general locker room area. 7-31-17 Tr. at 125, 141, 142, 147. Although
somewhat unclear, it appeared that Dr. Cooper testified during his deposition that the team rooms were unavailable
to BASH students during the school day. Cooper Dep. at 72-75. Regardless, after reviewing the totality of Dr.
Cooper’s testimony and after considering the totality of Dr. Faidley’s deposition testimony, the court finds that the
School District is endeavoring to reasonably accommodate any uncomfortable student at BASH and it appears that
uncomfortable students will be able to use the team rooms. 7-31-17 Tr. at 125, 141-42. If a student uses the team
locker room, the student would not need to walk through the gym locker rooms to get to the gym. Id. at 124.

26

85.

Thus, four of the single-user restrooms for students will have lockers added for

the 2017-18 school year so that students changing in those restrooms can store their belongings.
7-31-17 Tr. at 148-49.
86.

For BASH students who do not want to change in a locker room with a

transgender student, the School District is committed to making facilities available for that
student to change outside of the presence of the transgender student. 7-31-17 Tr. at 149.
87.

Dr. Faidley believes that all students can have an expectation of privacy and if a

student is concerned about their environment, the School District would work with the concerned
student to provide an alternative environment. Faidley Dep. at 65-66.
88.

Dr. Cooper believed that students changing in the common areas of the bathrooms

had an expectation of privacy in those areas. 7-31-17 Tr. at 132.
89.

On May 23, 2017, the School District hired an architectural firm to “evaluate the

feasibility of modifying existing, multi-user high school facilities to enhance the level of privacy
for all students.” 7-31-17 Tr. at 126, 127; Defs.’ Ex. D-36, May 24, 2017 Release. To date, this
project has minimally moved forward insofar as the project is still identifying the relevant
stakeholders. 7-31-17 Tr. at 127, 140, 141.
90.

The practice of allowing transgender students to use the restrooms and locker

rooms aligned with their gender identity has not resulted in any disruption to the education
program or activities of the School District. 7-31-17 Tr. at 116. There have been no student or
employee protests or walkouts regarding the practice. Id. Per Dr. Cooper’s experience, BASH
students have accepted and integrated the transgender students into the student population. Id.
91.

The School District has not received any requests to use bathrooms or locker

rooms from individuals identifying as gender fluid (meaning that the student identifies as male in

27

some situations and female in other situations) or third gender. 7-31-17 Tr. at 112, 113, 129,
130. Dr. Cooper is unaware of any gender fluid or third gender students being enrolled at
BASH. 7-31-17 Tr. at 112, 113. The School District does not have a plan in place yet to
consider such requests from gender fluid or third gender students. 7-31-17 Tr. at 130; Cooper
Dep. at 84, 85.
92.

No transgender student has requested permission to shower in either of the BASH

locker rooms, and Dr. Cooper is unaware of any transgender student ever showering in either of
the BASH locker rooms. 7-31-17 Tr. at 125.
93.

The School District has an anti-bullying policy. Faidley Dep. at 82.

94.

The School District has an anti-discrimination policy and a sexual harassment

policy. Defs.’ Exs. D-44, D-46.
95.

Dr. Cooper indicated that the School District’s position is that a female student at

BASH has no expectation of privacy from a transgender female when using the common areas of
the bathrooms or locker rooms. 7-31-17 Tr. at 133-34; Cooper Dep. at 126.
96.

Dr. Cooper believes that there are many ways that the School District could

support transgender students without giving them access to privacy facilities corresponding to
their gender identity. 7-31-17 Tr. at 138.
97.

The School District has been very supportive of all students, including

transgender students, and even prior to the practice permitting transgender students to use the
privacy facilities corresponding to their gender identity, the School District granted transgender
students’ requests to be called by an initial instead of their name; granted requests for name
changes to align with the student’s preferred gender; encouraged teachers and staff to use a
student’s preferred pronouns; gave students access to single-user bathrooms if they were

28

uncomfortable using bathrooms of their biological sex; and provided counseling support. 7-3117 Tr. at 136-138.
98.

On February 22, 2017, the United States Department of Justice, Civil Rights

Division, and the United States Department of Education, Office for Civil Rights, issued a Dear
Colleague Letter in which they withdrew the guidance provided in (1) a letter from Emily Prince
to James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights
at the Department of Education dated January 7, 2015, and (2) the May 2016 Dear Colleague
Letter (the “February 2017 Dear Colleague Letter”). Defendants’ Mem. in Opp. to the Mot. for
Prelim. Inj. at Ex. 7, Feb. 22, 2017 Dear Colleague Letter; see also id. at Ex. 8, January 7, 2016
Letter from Emily Prince.
99.

In the February 2017 Dear Colleague Letter, the Departments explained that the

aforementioned guidance documents “do not . . . contain extensive legal analysis or explain how
the position is consistent with the express language of Title IX, nor did they undergo any public
process.” Feb. 22, 2017 Dear Colleague Letter.
100.

In the February 2017 Dear Colleague Letter, the Departments further explained

that
[t]his interpretation has given rise to significant litigation regarding school
restrooms and locker rooms. The U.S. Court of Appeals for the Fourth Circuit
concluded that the term “sex” in the regulations is ambiguous and deferred to
what the court characterized as the “novel” interpretation advanced in the
guidance. By contrast, a federal district court in Texas held that the term “sex”
unambiguously refers to biological sex and that, in any event, the guidance was
“legislative and substantive” and thus formal rulemaking should have occurred
prior to the adoption of any such policy. In August of 2016, the Texas court
preliminary enjoined enforcement of the interpretation, and that nationwide
injunction has not been overturned.
In addition, the Departments believe that, in this context, there must be due regard
for the primary role of the States and local school districts in establishing
educational policy.
29

Feb. 22, 2017 Dear Colleague Letter.
101.

Based on the aforementioned explanation, the Departments indicated that they are

“withdraw[ing] and rescind[ing] the above-referenced guidance documents in order to further
and more completely consider the legal issues involved.” Feb. 22, 2017 Dear Colleague Letter.
102.

The School District received the February 22, 2017 Dear Colleague Letter.

Plaintiffs’ Ex. P-42, Resp. to Pls.’ First Set of Reqs. for Admiss. to Defs.’ at ¶ 8.
103.

Despite the rescission of the guidance provided in the May 2016 Dear Colleague

Letter, the School District continued and intends to maintain the current practice with respect to
transgender students and requests to use privacy facilities corresponding to their gender identity
because “the district believes that transgender students should have the right to use school
bathroom and locker facilities on the same basis as non-transgender students.” BASD FAQ; 731-17 Tr. at 134-35. The School District believes that its “position is consistent with guidance
from the Pennsylvania School Boards Association, the National School Boards Association, our
Solicitor and what the school district administration believe is fair and equitable under the
circumstances.” BASD FAQ.
104.

The School Board voted to continue the practice implemented by the School

District’s administration by a vote of 6-3 on March 28, 2017. 13 Faidley Dep. at 45, 46.
B.
105.

Plaintiff Joel Doe and his Guardians, John Doe and Jane Doe
Joel Doe is, as of July 17, 2017, a 17-year-old boy who is going into his senior

year of high school for the 2017-18 school year. 7-17-17 Tr. at 81, 82, 83; Joel Doe Dep. at 16.
106.

Joel Doe was a junior student at BASH for the 2016-17 school year. 7-17-17 Tr.

at 81, 82; Amended Compl. at ¶ 10; Joel Doe Dep. at 16.
13

According to Dr. Faidley, this vote was to reject the plaintiffs’ demand letter. Faidley Dep. at 45.

30

107.

During the 2016-17 school year, Joel Doe split his school day between BASH and

the Berks Career and Technology Center (“BCTC”). 7-17-17 Tr. at 84.
108.

During the 2016-17 school year, Joel Doe would spend his afternoons at BASH

and would attend gym class once out of a six-day cycle. 7-17-17 Tr. at 84, 117.
109.

On October 31, 2016, Joel Doe was in the boys’ locker room changing clothes for

gym class along with approximately 15 other boys. 7-17-17 Tr. at 85, 88.
110.

Joel Doe took off his pants so that he could put on his gym shorts. 7-17-17 Tr. at

111.

While Joel Doe was in his underwear and a shirt, another student tapped him on

88.

the shoulder and said “turn around.” 7-17-17 Tr. at 88.
112.

Joel Doe then turned around and saw Student A standing there. 7-17-17 Tr. at 88.

Student A was wearing shorts and a purple K Swiss sports bra. 14 Joel Doe Dep. at 22-23, 11617.
113.

Although Student A is a transgender boy, Joel Doe testified that he believed that

Student A was a girl because he had middle school classes with Student A and believed Student
A identified as a girl at that time. 7-17-17 Tr. at 89.
114.

Upon seeing Student A, Joel Doe asserts that he was embarrassed and humiliated

and scrambled to finish putting on his shorts, place everything in his locker, and lock the locker
so he could leave the locker room and get to gym class. 7-17-17 Tr. at 88; Joel Doe Dep. at 2526.
14

During Joel Doe’s deposition, counsel were not using the same pseudonym for each student; nonetheless, Joel
Doe identified the student in the locker room as Student A during his hearing testimony. In addition, the court notes
that some of the individual defendants disputed Joel Doe’s assertion that he saw Student A in a sports bra insofar as
to the best of their knowledge, Student A wore gym clothes underneath his school clothes. See, e.g., Faidley Dep. at
98; Pls.’ Ex. P-50, Decl. of Dr. E. Wayne Foley (“Foley Decl.”) at ¶ 6 (“Student A does not disrobe to change for
gym class, but rather wears gym clothes under his regular clothes and then simply removes the outer layer of
clothes.”).

31

115.

Joel Doe participated in gym class and returned to the locker room to change out

of his gym clothes and into his school clothes. 7-17-17 Tr. at 90. Joel Doe retrieved his clothes
from his locker and then moved to an area where he hoped that Student A, who was located in
the same spot of the locker room prior to class, could not see him. Id. Joel Doe hurried to
change and left the locker room. Id.
116.

While in the locker room, Joel Doe overheard another unidentified student tell

Student A, “You don’t belong here, you B word.” 7-17-17 Tr. at 90-91.
117.

After exiting the locker room, Joel Doe and a few classmates decided to go to

school administration to discuss what happened. 15 7-17-17 Tr. at 91. They first went to the
guidance counselor’s office, but were directed to speak to their grade-level principal because the
topic of their discussion was not an academic issue. Id. at 92.
118.

Joel Doe and the other students then went to the office of the grade-level

principals and asked to speak to a principal about an issue that occurred in the locker room. 717-17 Tr. at 92.
119.

Dr. Foley came out to meet the boys, and they went into his office to talk. 7-17-

17 Tr. at 92; Foley Dep. at 42. The door to Dr. Foley’s office remained open throughout the
conversation. 7-17-17 Tr. at 92, 93; Foley Dep. at 42. Dr. Foley indicated that he had no
expectation of “confidentiality” during the meeting. 16 Foley Dep. at 42.
120.

Joel Doe informed Dr. Foley that there was a “girl” in the locker room, and he

questioned the legality of the “girl” being in the locker room. 7-17-17 Tr. at 92; Pls.’ Ex. P-6.

15

During his deposition, Joel Doe testified that he and the other students went to discuss what happened between
fifth and sixth period. Joel Doe Dep. at 29-34. During the evidentiary hearing, Joel Doe testified that he and the
other students went to discuss what happened during eighth period. 7-17-17 Tr. at 91.
16
Without Dr. Foley’s knowledge, Joel Doe recorded the conversation. 7-17-17 Tr. at 96; Pls.’ Ex. P-6. It is
unclear what Dr. Foley meant when he referenced “confidentiality.”

32

121.

Dr. Foley explained that any transgender student could choose the bathroom

and/or locker room in which they identify their gender. 7-17-17 Tr. at 92; Pls.’ Ex. P-6. He also
stated that they were “trying to get another ruling on that too, because that law continues to
change instantaneously.” Pls.’ Ex. P-6.
122.

Joel Doe asked Dr. Foley to define transgender, and Dr. Foley defined it as “any

mental state that a person has that they believe that they identify with” and stated that “[i]t does
not have to be physical at this point.” Pls.’ Ex. P-6; Joel Doe Dep. at 37, 38.
123.

Joel Doe then asked Dr. Foley if there was anything he could do to “separate” this

group of boys from Student A in the locker room. 7-17-17 Tr. at 93, 118; Pls.’ Ex. P-6. Dr.
Foley stated that there was nothing he could do “instantaneously,” but he was waiting to get a
“ruling” on it.

Pls.’ Ex. P-6.

He indicated that “in the meantime I just need you to,

unfortunately, tolerate it.” Pls.’ Ex. P-6; 7-17-17 Tr. at 93, 118. He further explained that they
should “[y]ou know, try and make it as unnatural [sic] as possible. You know, just make it as
natural as you possibly can.” Pls.’ Ex. P-6; 7-17-17 Tr. at 93.
124.

Joel Doe asked Dr. Foley to let him know when he found out whether Student A

would continue to use the locker room. Pls.’ Ex. P-6. Dr. Foley told Joel Doe that he would
know the answer because Student A either would stay in there or Student A would no longer be
in there. Pls.’ Ex. P-6.
125.

As Joel Doe and the other students were leaving the office at the end of the

conversation, Dr. Foley asked them to be “[a]s natural as possible . . . as kind as you can be.”
Pls.’ Ex. P-6.

33

126.

Before speaking with Dr. Foley, Joel Doe was not made aware of the School

District’s change in practice to allow students to use the bathrooms and locker rooms of the
opposite sex if they identified with that sex. 7-17-17 Tr. at 110.
127.

Joel Doe testified that after speaking to Dr. Foley, he believed that he had to

tolerate having Student A in the locker room with him as it was his “only option.” 7-17-17 Tr. at
110.
128.

When Joel Doe returned home from school on October 31, 2016, he informed his

guardians, John Doe and Jane Doe, that while changing in the locker room he had observed a
“girl,” Student A, in the locker room. July 12, 2017 Dep. of Jane Doe (“Jane Doe Dep.”) at 9,
10, 40; July 12, 2017 Dep. of John Doe (“John Doe Dep.”) at 11. Joel Doe told his guardians
that he was in his underwear when he saw Student A wearing shorts and a “bra thingy.” Jane
Doe Dep. at 9, 10, 11; John Doe Dep. at 11.
129.

Prior to Joel Doe reporting that he saw Student A in the locker room, Jane Doe

and John Doe did not know that the School District was letting transgender students (whom they
characterized as members of the opposite biological sex) into the locker rooms of the gender in
which they identify. Jane Doe Dep. at 13.
130.

Before Joel Doe had gym class again, Dr. Foley met with him. 17 7-17-17 Tr. at

121. Dr. Foley apologized for any mistake and offered Joel Doe two alternative places where he
could change in private. Id. at 121. Dr. Foley told Joel Doe that he could use either the singleuser facility in the nurse’s office or the single-user facility near the locker room. Foley Dep. at
48. Dr. Foley asked Joel Doe to choose one of the options, which he did. 7-17-17 Tr. at 121.

17

Dr. Foley also met with Jane Doe and John Doe one or two days after October 31, 2016. Jane Doe Dep. at 12;
John Doe Dep. at 13; Foley Dep. at 48. It is unclear whether Dr. Foley’s conversation with the Does occurred
before or after this conversation with Joel Doe.

34

131.

Dr. Foley did not know whether either of the two locations had a place for Joel

Doe to store his belongings and, in choosing the one alternative, Joel Doe did not tell Dr. Foley
that this location was a problem because he could not store his belongings there. Foley Dep. at
48; 7-17-17 Tr. at 121.
132.

Joel Doe testified that subsequent to October 31, 2016, he did not get dressed in

any other area for gym class because he did not have a place to safely secure his belongings. 717-17 Tr. at 111; Joel Doe Dep. at 105. Thus, he did not use the single-user areas offered by the
School District’s administration.
133.

Joel Doe could not explain how he would not be adequately protected if a locker

was installed in the single-user facility. Joel Doe Dep. at 105-06.
134.

Dr. Foley indicated that Joel Doe could give his belongings to the gym teacher,

who would have secured his belongings for him. Foley Dep. at 49.
135.

Joel Doe has never showered at school and has never seen anyone take a shower

at school. Joel Doe Dep. at 73.
136.

Joel Doe is unaware of any time that the defendants allegedly violated his right to

privacy other than on October 31, 2016. Joel Doe Tr. at 184.
137.

Joel Doe never saw another student’s genitals while changing in the boys’ locker

room. 7-17-17 Tr. at 122. He also never saw another student remove his underwear in the
locker room. Joel Doe Dep. at 213.
138.

Joel Doe has never had any of his intimate body parts exposed in a common area

of the student bathrooms or the locker room. Joel Doe Dep. at 113, 231-32.
139.

In early November 2016, John and Jane Doe met with Dr. Cooper at BASH to

discuss the locker room issue. Jane Doe Dep. at 15; John Doe Dep. at 17; 7-17-17 Tr. at 118-19;

35

7-31-17 Tr. at 114-15. During this conversation, Dr. Cooper explained the School District’s
practice of allowing students to use the facilities with which they identify, and said that if Joel
Doe was uncomfortable changing in the locker room with a transgender male student,
arrangements could be made for Joel Doe to change in the nurse’s office bathroom or a singleuser restroom near the gym. 7-31-17 Tr. at 114-15.
140.

On November 16, 2016, Jane Doe sent an e-mail to the gym teacher in which she

indicated that per her and John Doe’s decision, Joel Doe would not be attending gym class until
further notice due to “unresolved issues with his safety in reference to the locker room.” 18 Jane
Doe Tr. at 18, 19-20; Pls.’ Ex. P-52; 7-31-17 Tr. at 115. Jane Doe also indicated that she had
been waiting for information and a “letter” from Dr. Cooper or Dr. Faidley, and had yet to
receive the information or the letter despite her requests. 19 Pls.’ Ex. P-52.
141.

When Joel Doe arrived at BASH after his morning at BCTC, instead of going to

gym class he went to the assistant principals’ office and asked to speak to Dr. Foley, Dr. Cooper,
or any administrator. Joel Doe Dep. at 58. Dr. Foley and Dr. Cooper met with Joel Doe and he
told them that he was not to go to class until one of them spoke to his legal guardian. Joel Doe
Dep. at 58; John Doe Dep. at 27-28. Dr. Foley, Dr. Cooper, and Joel Doe then engaged in a
conference call with Jane Doe. During this conversation, Dr. Cooper, who had finally heard
from Assistant Superintendent Scoboria that the School District was not going to place anything
in writing, informed Jane Doe that he was not going to provide her anything in writing. 20 Jane

18

It is unclear whether Joel Doe attended gym class in between October 31, 2016, and November 16, 2016.
Dr. Cooper testified that the Does had asked him for something in writing to confirm the School District’s practice
and that he had been waiting for direction from Assistant Superintendent Scoboria before speaking to the Does
again. 7-31-17 Tr. at 115.
20
Both Joel Doe and Jane Doe claim that Dr. Cooper yelled at Jane Doe during this conversation. Joel Doe Tr. at
58-59; Jane Doe Tr. at 21.
19

36

Doe Dep. at 21; Joel Doe Dep. at 56, 57, 58; 7-31-17 Tr. at 115. Dr. Cooper again offered the
alternative changing arrangements for Joel Doe. 21 7-31-17 Tr. at 115.
142.

John and Jane Doe later met with Dr. Faidley and Assistant Superintendent

Scoboria to discuss the locker room issue. Jane Doe Dep. at 17, 23, 27; John Doe Dep. at 18, 19;
Faidley Dep. at 85. During this conversation, Dr. Faidley asked the Does if the administration
had offered alternative arrangements for Joel Doe. Faidley Dep. at 86. The Does said that the
administration had made such an offer, but the Does did not find the offer acceptable. 22 Faidley
Dep. at 86. Dr. Foley indicated that he was not going to remove the transgender student from the
locker room. 23 Faidley Dep. at 86.
143.

Joel Doe knew from his parents that he could use a single-user bathroom as an

alternative arrangement. 7-17-17 Tr. at 119.
144.

If Joel Doe used a single-user bathroom to change for gym, he acknowledged that

he could have used his school locker in the hallway to store his belongings. 7-17-17 Tr. at 119.
145.

Although Joel Doe continued to participate in gym, a required course at BASH,

he did not use the boys’ locker room at BASH to change clothes after October 31, 2016. 7-17-17
Tr. at 110-11, 112; Joel Doe Dep. at 24. He stated that he no longer changed in the locker room
because a “girl,” Student A, was in there. 7-17-17 Tr. at 112.

21

Jane Doe claims that Dr. Cooper did not resolve her continuous concern that Joel Doe did not have a place to store
his belongings if he used the alternative arrangements to change for gym class. Jane Doe Tr. at 22. She also
testified that the gym teacher told Joel Doe that he had to use the locker room to store his belongings. Jane Doe Tr.
at 22.
22
While somewhat unclear, it appears that the Does are claiming that the alternative arrangements were
unacceptable due to uncertainty as to how Joel Doe would secure his belongings and Joel Doe’s concerns about
being separated from the other boys and that other boys would wonder why he was changing there. Jane Doe Dep.
at 24.
23
Jane and John Doe assert that Dr. Faidley told them that if they were really unhappy, the School District had a
cyber-school that Joel Doe could use and still attend BCTC. Jane Doe Dep. at 25-26; John Doe Dep. at 19. Dr.
Faidley denied making such a statement to the Does. Faidley Dep. at 86-87.

37

146.

Because Joel Doe did not change clothes for gym class as required, he only

received partial credit for the class. 24 7-17-17 Tr. at 111.
147.

Prior to October 31, 2016, Joel Doe used BASH restrooms approximately once

per day. 7-17-17 Tr. at 112-13. Subsequent to October 31, 2016, Joel Doe used the bathrooms
approximately two to three times per week. 7-17-17 Tr. at 113.
148.

Joel Doe does not feel comfortable use the multi-user boys’ restrooms because

females can use the restrooms. 7-17-17 Tr. at 115.
149.

Joel Doe acknowledges that he could have used the single-user bathroom in the

nurse’s office. 7-17-17 Tr. at 113.
150.

If Joel Doe had to use a bathroom after October 31, 2016, he would generally use

a single-user facility, but if it was an emergency, he would use the boys’ multi-user restroom
located in the “700s” hallway because this bathroom was closest to his last period class. 7-17-17
Tr. at 113-14, 121, 123; Pls.’ Ex. P-30; Joel Doe Dep. at 18-19. He usually waited until the last
period to use the bathroom to the extent he was “holding it in all day.” 7-17-17 Tr. at 123-24.
151.

The 700s hallway multi-user boys’ bathroom contains four urinals and one or two

bathroom stalls. Pls.’ Ex. P-30. If Joel Doe was using one of the stalls, he is tall enough to look
over the stall’s walls to make eye contact with a student standing at one of the urinals. 25 7-17-17
Tr. at 114.
152.

Joel Doe indicated that when he uses the boys’ bathrooms at BASH, he feels

uncomfortable. 7-17-17 Tr. at 115.
24

Dr. Foley explained that “[e]ven without changing into gym clothes, [Joel] Doe could receive 90% of a day’s
possible gym grade by participating in class while wearing sneakers.” Foley Decl. at ¶ 10. “Similarly, [Joel] Doe
could receive 75% of a day’s possible gym grade by participating without changing into gym clothes and not
wearing sneakers.” Id. at ¶ 11. Dr. Foley further indicated that “[s]ince October 31, 2016, [Joel] Doe has sometimes
chosen not to participate in gym class at all. However, he received a passing grade overall for the combined health
and physical education course for the year.” Id. at ¶ 12.
25
Joel Doe acknowledged that other boys’ bathrooms at BASH contained higher partitions in the stalls. 7-17-17 Tr.
at 122.

38

153.

Joel Doe has never seen any student that he would call a “girl” in a boys’

bathroom. Joel Doe Dep. at 74.
154.

Joel Doe acknowledges that when he used a single-user bathroom, his privacy

was protected. 7-17-17 Tr. at 121-22.
155.

Joel Doe does not find that the School District allowing him to use a single-user

facility is acceptable because he believes that he has the right to use the boys’ bathrooms and
maintain his privacy there from individuals of the opposite biological sex. 7-17-17 Tr. at 115.
156.

Joel Doe was unaware of a biological girl ever using the boys’ locker room other

than Student A on October 31, 2016. 26 Joel Doe Dep. at 74.
157.

Joel Doe believes that someone who is born a male is always male and that

someone who is born a female is always female, regardless of any sex-change surgery or
hormone replacement surgery. Joel Doe Dep. at 87-88, 157-58, 168. He bases his assessment on
whether someone is male or female based on how they were born and the reproductive organs
that the person has. Joel Doe Dep. at 158-59, 168, 173, 221-22.
158.

Joel Doe would be satisfied if only individuals listed as male on their original

birth certificates could use the boys’ facilities. Joel Doe Dep. at 229-30. He maintains this
position and would not object to an individual listed as male on the individual’s birth certificate
being in the locker room or bathroom with him even if this individual had his penis surgically
removed and a vagina constructed. Joel Doe Dep. at 85-88, 220-21, 229-230.
159.

Joe Doe is unopposed to sharing the boys’ locker room with a student who has

breasts and if a transgender girl underwent hormone therapy that caused her to develop breasts,

26

Dr. Foley indicated that “[a]t some point during the 2016-2017 school year, Student A’s schedule was changed,
removing him from the physical education class shared with Joel Doe and Jack Jones. There is no other known
transgender student in that physical education class.” Foley Decl. at ¶ 9.

39

he would not object to the transgender girl using the boys’ locker room. Joel Doe Dep. at 233,
234, 235.
160.

Joel Doe does not recognize a transgender boy as male because the transgender

boy was born female. Joel Doe Dep. at 86.
161.

Joel Doe acknowledges that he cannot tell if someone is biologically a male or if

the person is transgender simply by their appearance. Joel Doe Dep. at 161, 233.
162.

Joel Doe is unopposed to sharing a bathroom with a transgender female student.

7-17-17 Tr. at 116. Joel Doe is unopposed to sharing a bathroom with a boy who dresses like a
stereotypical girl. 7-17-17 Tr. at 115.
163.

Joel Doe has never filed an internal complaint with the School District pursuant to

its sexual harassment policy. Joel Doe Dep. at 41.
164.

Joel Doe has not seen any doctor, psychologist, psychiatrist, or therapist since

encountering Student A in the locker room on October 31, 2016. Joel Doe Dep. at 111.
165.

Joel Doe has not received any medical care for any anxiety, embarrassment, or

stress. Joel Doe Dep. at 197.
166.

Joel Doe claims that he filed this lawsuit because a girl viewed him in his

underwear in the boys’ locker room and when he went to the School District administration for
help they told him that he had to tolerate it and make it as natural as possible. 27 7-17-17 Tr. at
85.

27

There is, at best, an inconsistent record regarding precisely what happened with Student A in the locker room on
October 31, 2016. The majority of the evidence provided by Joel Doe though his allegations in the amended
complaint, his responses to the defendants’ interrogatories, his deposition testimony, and his evidentiary hearing
testimony was simply that he saw Student A in the locker room with him. See, e.g., Amended Compl. at ¶ 50
(alleging that “[Joel Doe] was standing in his underwear about to put his gym clothes on, [when] he suddenly
realized there was a member of the opposite sex[, Student A] changing with him in the locker room;” Amended
Compl. at ¶ 53 (alleging that when Joel Doe went to see Dr. Foley, he “informed Dr. Foley that there was a girl in
the [boys’] locker room”); Joel Doe Dep. at 20, 22-24 (describing incident on October 31, 2016 as involving him
seeing Student A in the locker room); Joel Doe Dep. at 27 (describing when he was getting the group of boys

40

167.

Joel Doe’s decision about whether he will return to BASH for his senior year

depends on how the court resolves the plaintiffs’ motion for a preliminary injunction. 7-17-17
Tr. at 84-85.
168.

Joel Doe is requesting that the court issue a preliminary injunction so he can

continue to use the locker rooms and restrooms provided to males. 7-17-17 Tr. at 116.
C.
169.

Plaintiff Jack Jones and his Parents, John Jones and Jane Jones
Jack Jones is, as of July 11, 2017, at 17-year-old boy who is going into his senior

year of high school for the 2017-18 school year. July 11, 2017 Trial Dep. of Jack Jones (“Jack
Jones Trial Dep.”) at 4; Jack Jones Dep. at 14.
170.

Jack Jones was a junior student at BASH for the 2016-17 school year, and he

intends to complete high school at BASH. Jack Jones Trial Dep. at 4; Jack Jones Dep. at 14,
127.
171.

During the first week of November 2016, Jack Jones was in the boys’ locker room

at BASH and was changing after gym class. Jack Jones Trial Dep. at 17, 18, 22; Jack Jones Dep.
at 16, 23, 135, 155-56. After being in the locker room for approximately a minute-and-a-half to
two minutes, another student, Student CC, who was standing to his right, tapped him on the
shoulder and gestured at him to look behind him. Jack Jones Trial Dep. at 17-18, 28; Jack Jones
Dep. at 16, 17, 20-21, 135-36. Jack Jones turned and saw Student A, a student who he identified
as a “girl,” who was wearing a short gray top and short shorts. 28 Jack Jones Dep. at 23; Pls.’ Ex.

together to see Dr. Foley because he “wanted to know why there was a girl in the locker room, how she got there”);
7-17-17 Tr. at 88-89 (indicating that he turned around and saw Student A standing there). Even in the plaintiffs’
proposed findings of fact and conclusions of law, they describe what happened to Joel Doe and not ask the court to
specifically find that Student A saw Joel Doe in his underwear. See Plaintiffs’ Supplemental Findings of Fact and
Conclusions of Law at ¶¶ 26-28.
On the other hand, Joel Doe claimed that he filed this lawsuit because Student A saw him in his underwear,
and the plaintiffs ask the court to enter a conclusion of law that Joel Doe’s experience of being viewed in his
underwear by Student A would be highly offensive to a reasonable person.
28
Jack Jones also indicated that Student A was wearing a sports bra. Jack Jones Dep. at 20-22; 135-38.

41

P-44, Pl. Jack Jones’s Resp. to Defs.’ First Set of Interrog. at 2. Student A was standing to the
left of him and staring into Student A’s locker. Jack Jones Dep. at 21, 22.
172.

Jack Jones did not know Student A’s name, and Student A was not in his gym

class. Jack Jones Dep. at 17-18, 29.
173.

At the time that Jack Jones saw Student A, he (Jack Jones) was wearing a shirt

and he was in his underwear. Jack Jones Trial Dep. at 18, 22; Jack Jones Dep. at 16, 23, 135.
174.

Upon seeing Student A, Jack Jones, who was at the middle row of lockers in the

locker room, moved two or three feet away to an area of the locker room where he believed he
was most hidden from Student A. Jack Jones Trial Dep. at 18, 19; Jack Jones Dep. at 23, 25, 2728. Jack Jones then quickly put on his shorts, and then he saw Student A walk past him and out
of the locker room. Jack Jones Trial Dep. at 18; Jack Jones Dep. at 23.
175.

Jack Jones claims that when he saw Student A he was shocked and somewhat

humiliated because he quickly moved upon seeing Student A. Jack Jones Trial Dep. at 19. Jack
Jones claims that he was also ashamed and embarrassed because he was the one who moved and
because he believes that his privacy was violated. Jack Jones Trial Dep. at 19-20; Jack Jones
Dep. at 30.
176.

Jack Jones did not see Student A’s breasts or genitalia. Jack Jones Dep. at 39.

177.

As Student A was moving to exit the locker room, Jack Jones overheard a boy

yell, “if you don’t have a dick, get the fuck out,” and he heard boys laughing. Jack Jones Trial
Dep. at 20, 30.
178.

Jack Jones also heard another boy yell, “if you have a dick, raise your hand,”

which caused a bunch of boys to raise their hands. Jack Jones Trial Dep. at 20.

42

179.

Jack Jones left the locker room and texted his parents that he saw a “girl” in the

locker room and shared with them what he heard the other boys saying in there. Jack Jones Trial
Dep. at 21-22, 31.
180.

Prior to this incident, Jack Jones had already shared with his parents that another

student, Student E, who had joined Joel Doe when the group of boys met with Dr. Foley on
October 31, 2016, told him that there was a girl who identifies as a boy in the locker room and
some guys went to the office to complain about it. Jack Jones Trial Dep. at 16, 21-22, 32; Jack
Jones Dep. at 30-31, 38, 134-35; July 11, 2017 Dep. of John Jones (“John Jones Dep.”) at 8.
Student E also indicated to Jack Jones that the school said that the boys had to deal with it. Jack
Jones Dep. at 135.
181.

Jack Jones’ initial text to his parents stated: “Someone yelled if you don’t have a

d***, get the f*** out lol.” Jack Jones Trial Dep. at 31; Intervenor’s Ex. I-1; July 11, 2017 Dep.
of Jane Jones (“Jane Jones Dep.”) at 14; John Jones Dep. at 9-10.
182.

Jack Jones’s mother, Jane Jones, responded to the text by saying, “Good.” 29 Jack

Jones Trial Dep. at 32, 33; Intervenor’s Ex. I-1; Jane Jones Dep. at 15.
183.

Jack Jones’s father, John Jones, responded to his son’s text by saying, “Wow.”

Jack Jones Trial Dep. at 32, 33; Intervenor’s Ex. 1; John Jones Dep. at 10.
184.

In the same text message conversation, Jack Jones told his parents that “[t]he

whole thing is screwed up” and “[s]he doesn’t even look like a guy. She has short purple hair
but was in short shorts and had breasts but was probably in [sic] sports bra.” Jack Jones Trial
Dep. at 33; Intervenor’s Ex. I-1.

29

With regard to her response, Jane Jones stated that although she did not agree with the way the boys said it, she
“liked that they were opposing what was going on” and that they “don’t have to accept this.” Jane Jones Dep. at 15.

43

185.

Jack Jones did not tell Jane Jones that Student A was looking at him. Jane Jones

Dep. at 13.
186.

Jack Jones only saw Student A in the locker room on this one occasion. Jack

Jones Dep. at 18, 140-41.
187.

Jack Jones never saw Student A in a boys’ bathroom. Jack Jones Dep. at 42.

188.

Although Jack Jones had gym class every day for the first semester of the school

year, he did not have gym in the second half because he had health class instead. Jack Jones
Dep. at 16-17.
189.

According to Jack Jones, BASH students were required to change their clothes for

gym class and, if they did not change into appropriate clothes, they would lose points. Jack
Jones Trial Dep. at 23, 120-21. Jack Jones believes that if a student does not pass gym, the
student cannot graduate. Jack Jones Trial Dep. at 23.
190.

When Jack Jones had gym class after the incident, he continued to use the locker

room to change even though he changed his usual route through the locker room so he could
explore the entire locker room (including the shower area) to see whether a “girl” was in there
too. Jack Jones Trial Dep. at 22-23, 29; Jack Jones Dep. at 32-34, 140. After conducting his
survey of the locker room, Jack Jones would quickly change and exit the locker room. Jack
Jones Trial Dep. at 23; Jack Jones Dep. at 140.
191.

Jack Jones did not feel that he was unable to use the boys’ locker room to change

after seeing Student A in there on one occasion. Jack Jones Trial Dep. at 23, 29, 119.
192.

Jack Jones never used the shower area of the locker room, which he knew had

individual stalls and shower curtains, to change, and that was regardless of whether he saw

44

Student A or another person he believed was a “girl,” in the locker room with him. Jack Jones
Dep. at 35, 142.
193.

Subsequent to seeing Student A in the locker room, Jack Jones still used the boys’

bathrooms, but only if he absolutely had to do so. Jack Jones Trial Dep. at 23. He tried to hold
his bladder as much as possible and he used the restroom approximately once per week. Jack
Jones Trial Dep. at 23, 24; Jack Jones Dep. at 42-43. Prior to seeing Student A in the locker
room, he used the restrooms approximately once per day. Jack Jones Trial Dep. at 23, 24; Jack
Jones Dep. at 42.
194.

When Jack Jones would use the boys’ bathrooms at school after seeing Student A,

he would go into the toilet stall and lock the door because he did not want anyone in the
bathroom to see him. Jack Jones Dep. at 153-54.
195.

Jack Jones claims that he was distracted by holding in his bladder all day. Jack

Jones Trial Dep. at 24. He did not get sick or need medical attention as a result of not using the
bathrooms as much as he had previously. Jack Jones Dep. at 43.
196.

Jack Jones obtained “good” grades in school (A’s and B’s) during his sophomore

and junior years at BASH. Jack Jones Dep. at 14, 130.
197.

If Jack Jones had a single-user bathroom at BASH available to him, it would

protect his privacy, but still would not satisfy his concerns because he believes he should be able
to go into “the male bathroom and male locker room and have [his] privacy protected from
girls.” Jack Jones Trial Dep. at 25, 43.
198.

Jack Jones was unaware of the availability of single-user bathrooms, including

one not far from the gym, as being available to students, and he did not ask about potentially
using them. Jack Jones Dep. at 43-44, 45, 119.

45

199.

Jack Jones is aware that there is a bathroom in the nurse’s office, but he believed

he could only use it in an emergency. Jack Jones Dep. at 44.
200.

Jack Jones does not shower at BASH and has never seen a boy shower there.

Jack Jones Dep. at 47.
201.

Jack Jones acknowledged that he could have changed his clothes in an individual

toilet stall, but he never used the toilet stalls to change for gym class. Jack Jones Trial Dep. at 9;
Jack Jones Dep. at 90. Jack Jones noted that each stall has a door that can be closed and locked.
Jack Jones Dep. at 33. He observed that there are cracks in the door and a person can see above
and below the door. Jack Jones Dep. at 33. He has never observed someone peeking through the
cracks. Jack Jones Dep. at 33-34.
202.

Jack Jones has not viewed other boys’ private areas in the locker room or

bathroom other when he saw boys’ buttocks when the boys were “mooning” other boys. Jack
Jones Trial Dep. at 9-10; Jack Jones Dep. at 87, 88, 89, 154.
203.

Jack Jones is unopposed to sharing a locker room with a homosexual boy or a

biological boy who dresses like a stereotypical girl. Jack Jones Trial Dep. at 25-26, 47.
204.

Through this litigation, Jack Jones wants policies put in place so that he can go

into the male locker room and bathroom and not get viewed by members of the opposite sex.
Jack Jones Trial Dep. at 26.
205.

Jack Jones defines a male as someone having internal and external reproductive

systems that are consistent with males.

Jack Jones Trial Dep. at 35-36.

At bottom, the

individual must be designated as male at birth and it does matter if that individual has different
anatomy than he has. Jack Jones Trial Dep. at 36, 40.

46

206.

Jack Jones acknowledges that he could not determine whether someone was

designated as male at birth simply by the person’s appearance now. Jack Jones Trial Dep. at 4042; Jack Jones Dep. at 85, 144-45.
207.

Jack Jones acknowledged that there could be situations in which a transgender

male student uses a restroom or locker room, but he would not know it because he would have
no way to verify the person’s biological sex. Jack Jones Dep. at 79-80.
208.

Jack Jones is unopposed to a transgender girl, even if the transgender girl had

modifications to look more like a stereotypical girl, using the boys’ locker room. Jack Jones
Trial Dep. at 45.
209.

Jack Jones is unopposed to students with penises using the girls’ locker room if

those students were designated as females at birth; similarly, if a transgender boy had surgery to
construct a penis, Jack Jones believes that transgender boy should use the girls’ locker room.
Jack Jones Trial Dep. at 36-37, 39-40, 45-46, 50.
210.

When Jack Jones changes in the locker room, he did so in a more secluded part of

the locker room because he did not want the other boys in the locker room to see him undressed.
Jack Jones Trial Dep. at 56.
211.

Jack Jones considers transgender males to be of the opposite sex from him. Jack

Jones Dep. at 58-59.
212.

Jane Jones discussed her concerns about the School District’s practice and Jack

Jones having been in the locker room with Student A with Dr. Cooper. Jane Jones Dep. at 19-21,
23-24. During this conversation, Jane Jones did not ask Dr. Cooper whether there were available
alternatives for Jack Jones to use when changing for gym. Jane Jones Dep. at 23.

47

213.

John and Jane Jones have no objection to Jack Jones sharing a locker room with

students who have different anatomy from him, as long as the students were designated as male
at birth. John Jones Dep. at 19, 20-21; Jane Jones Dep. at 33-34. This would include Jack
Jones’s possible exposure to breasts or a vagina, as long as the person with the breasts and/or
vagina is a male. John Jones Dep. at 19, 20.
214.

Jane Jones would not oppose Jack Jones sharing the boys’ locker room with a

transgender girl with breasts and a vagina, as long as the transgender girl was assigned male at
birth. Jane Jones Dep. at 15-16, 33.
215.

To Jane Jones, allowing Jack Jones to use a single-user facility would not

alleviate her privacy concerns for him because she believes he has “the right to go to the
bathroom in the bathroom and locker room he chooses with people of the same sex.” Jane Jones
Dep. at 40.
216.

John Jones acknowledges that Jack Jones’s ability to use a single-user restroom at

BASH would protect his privacy, but he believes that Jack Jones should have privacy when he is
using a multi-user bathroom. John Jones Dep. at 22, 23.
217.

John Jones would not oppose his daughter sharing the girls’ locker room with a

transgender boy who has a penis, as long as the student was assigned female at birth. John Jones
Dep. at 20-21.
218.

Jack Jones acknowledges that he could have changed his clothes in the locker

room by using a shower stall with the curtain drawn or a bathroom stall with the door closed, but
this would not have satisfied his privacy concerns because he would still have to walk through
the common area to get to these locations and he might have to walk past members of the
opposite biological sex while doing so. Jack Jones Trial Dep. at 49, 50; Jack Jones Dep. at 151-

48

52. So even if the “girl” did not see him undress, he might still see her undressing when he does
not want to do so. Jack Jones Dep. at 152.
219.

Jack Jones has not filed a complaint pursuant to the School District’s unlawful

harassment policy. Jack Jones Trial Dep. at 51, 52.
220.

Jack Jones has never discussed any concerns about transgender students and

issues associated with transgender students’ use of locker rooms or bathrooms with any of the
individual defendants. Jack Jones Dep. at 62-63.
221.

Jack Jones is unaware of any student who pretended to be transgender simply to

get access to a locker room or bathroom, and is unaware of any student acting as a Peeping Tom
in a locker room or restroom. Jack Jones Dep. at 86, 95-96.
222.

Despite being uncomfortable in the locker room, Jack Jones has not visited a

counselor, doctor, psychologist, or psychiatrist, to seek medical attention or get treatment. Jack
Jones Dep. at 41-42, 124, 125.
223.

Other than the one incident with Student A in the locker room, Jack Jones is

unaware of any fights or disturbances resulting from the School District’s practice concerning
transgender students. Jack Jones Dep. at 96-97.
224.

As far as Jack Jones is aware, the other boys in his gym class continued to use the

locker room as they normally did after the first week of November 2016. Jack Jones Dep. at
158. Jack Jones does not know of any other boy that avoided using the boys’ restroom because
of the possibility that a transgender student might be in there. Jack Jones Dep. at 158.
225.

Jack Jones admitted that some beachwear is more revealing than underwear, but

that has not stopped him from going to beaches or pools. Jack Jones Dep. at 45-46.

49

226.

Jack Jones claims that he is suffering irreparable harm insofar as “it’s

embarrassing to be the guy who has to go and say that there was a girl in the locker room. Most
of the guys try to play it off like, oh, I don’t care. Like that’s cool. But to be the guy who has to
stand up and say that’s wrong.” Jack Jones Dep. at 125, 129.
D.
227.

Plaintiff Mary Smith

Mary Smith, as of July 17, 2017, is an 18-year-old female who is going into her

senior year of high school for the 2017-18 school year. 7-17-17 Tr. at 31, 32; Mary Smith Dep.
at 14, 15, 16.
228.

Mary Smith was a junior student at BASH for the 2016-17 school year. 7-17-17

Tr. at 31, 32; Mary Smith Dep. at 14, 15.
229.

It is unclear whether Mary Smith is returning to BASH for her senior year. 30

230.

As part of her participation in a fall sport at BASH, Mary Smith would

occasionally change into her uniform using the multi-user girls’ bathroom located near the large
group instruction (“LGI”) room in the 700s hallway (the “700s Bathroom”). 7-17-17 Tr. at 35,
37, 38, 39; Pls.’ Ex. P-33, P-34, P-58, P-59; Mary Smith Dep. at 53, 54.
231.

Other girls at BASH change in the 700s Bathroom, and Mary Smith has been in

that bathroom with three to five girls changing for sports at once. 7-17-17 Tr. at 35; Mary Smith
Dep. at 53, 54, 56, 57, 58.
232.

When Mary Smith changed for her sport, she generally changed in the common

area and not in one of the stalls. 7-17-17 Tr. at 41. If she was menstruating, she would change
30

The plaintiffs have provided conflicting evidence as to Mary Smith’s intentions for the 2017-18 school year. At
her deposition, Mary Smith testified that she would be attending a Pennsylvania Virtual Charter School for her
senior year. Mary Smith Dep. at 126, 127. During the evidentiary hearing on July 17, 2017, she testified that she
had not decided whether she was returning to BASH and would base her decision on the outcome of the motion for a
preliminary injunction. 7-17-17 Tr. at 32. In the amended complaint, the plaintiffs allege that because of the School
District’s practice, Mary Smith will not return to BASH for her senior year. Amended Compl. at ¶ 117. In her
responses to the defendants’ first set of interrogatories, Mary Smith indicated that she had not decided what she was
doing yet. Pls.’ Ex. P-47, Pl. Mary Smith’s Resp. to Defs.’ First Set of Interrogs. at 2.

50

in one of the five toilet stalls for privacy. Id. She generally would not change in the stalls
because she thought they were “tiny” and “disgusting.” 31 Id. at 41, 42. When she changed,
Mary Smith would generally take off her top and put on a sports bra because she usually was not
wearing one during the day. Id. at 39. If she was menstruating, Mary Smith would change her
underwear and put on a skirt. Id.
233.

While changing in the 700s Bathroom, Mary Smith has observed other girls in

their bras and has observed girls’ bare chests and their bare buttocks. 7-17-17 Tr. at 39, 40.
234.

On March 22, 2017, Mary Smith went to use the 700s Bathroom and, as she was

in the entryway, she looked in the mirror and saw the reflection of a then-unknown male student,
Student B, washing hands at the sink.32 7-17-17 Tr. at 43, 44; Mary Smith Dep. at 17, 18, 19;
Pls.’ Ex. P-62. At this time, both Mary Smith and Student B were fully clothed. 7-17-17 Tr. at
64, 65; Mary Smith Dep. at 77-78. Mary Smith does not recall what Student B was wearing, and
she did not observe Student B doing anything other than washing hands. Mary Smith Dep. at 24,
25.
235.

Prior to March 22, 2017, Mary Smith had not observed any biological male

students in the girls’ bathrooms. 7-17-17 Tr. at 43, 64, 65.
236.

Mary Smith does not recall whether she and Student B saw each other. Mary

Smith Dep. at 105.

31

During her deposition, Mary Smith testified that she knew of no reason why students could not go into the
individual toilet stalls to change instead of changing in the common area. Mary Smith Dep. at 58.
32
During her evidentiary hearing testimony, Mary Smith stated that she was in the entryway when she saw this
student, but during her deposition she testified that she had entered the common area of the bathroom. 7-17-17 Tr.
at 43, 44; Mary Smith Dep. at 18. Also, although Mary Smith was unable to identify the student, it appears that the
School District investigated the incident (which appears to have included a review of video from cameras) and later
identified this student as Student B. Pls.’ Ex. P-62. Student B is the same individual referenced as Student M
during Mary Smith’s deposition. The video also confirmed that Mary Smith hurriedly exited the bathroom and went
the LGI room. Pls.’ Ex. P-62.

51

237.

Upon seeing Student B in the bathroom, Mary Smith immediately ran away and

went to the LGI room. 7-17-17 Tr. at 44; Mary Smith Dep. at 19, 20; Pls.’ Ex. P-62. She then
told the LGI “administrat[or]” or aide that she saw a male in the bathroom and, shortly thereafter,
this individual escorted her to the office. 7-17-17 Tr. at 44, 45; Mary Smith Dep. at 20; Pls.’ Ex.
P-62.
238.

While Mary Smith was telling the LGI instructor about the person in the

bathroom, another male student came into the LGI room and stated that he saw a male leaving
the girls’ bathroom, which confirmed the story for the LGI instructor. 7-17-17 Tr. at 45.
239.

While at the office, Mary Smith spoke to an individual at the front desk, who told

her that Dr. Foley was in a meeting but would get back to her. Mary Smith Dep. at 21.
240.

Mary Smith reported the incident in the bathroom and the School District

investigated it. 7-17-17 Tr. at 47, 48; Pls.’ Ex. P-62.
241.

Mary Smith believes that Student B is a boy because she had gone to school with

Student B for two years, although she acknowledges that she does not know if Student B is
actually a biological boy. Mary Smith Dep. at 23.
242.

As a result of seeing Student B in the bathroom, Mary Smith indicated that she

was humiliated and embarrassed and, since then, she has been uncomfortable using the
bathrooms at BASH. Mary Smith Dep. at 132.
243.

On March 23, 2017, Mary Smith met with Dr. Foley and told him what happened

to her the previous day in the 700s Bathroom. 33 7-17-17 Tr. at 48, 49, 59; Mary Smith Dep. at
16, 17, 28.

33

During Mary Smith’s deposition, defense counsel (without being corrected by Mary Smith) referred to March
23rd and March 24th as the date Mary Smith spoke to Dr. Foley. See Mary Smith Dep. at 16, 27. As the more
persuasive evidence shows that this conversation occurred on March 23, 2017, the court has used this date as the
date of the meeting. In addition, the court notes that defense counsel (again without being corrected by Mary Smith)

52

244.

Dr. Foley told Mary Smith that the School District had a “policy at BASH that

anyone who identifies as the opposite sex are allowed to use the bathrooms that they identify
with.” 7-17-17 Tr. at 49; see also Mary Smith Dep. at 16.
245.

This was the first time that Mary Smith heard that the School District was

permitting members of the opposite biological sex, or boys who identify as girls, to use the girls’
bathrooms and locker rooms at BASH. 7-17-17 Tr. at 59; Mary Smith Dep. at 16.
246.

When Mary Smith informed Dr. Foley that she had never heard about this and

asked whether the school had told parents about it, Dr. Foley stated that they had not, but
believed that the school was in the process of communicating it to the public. 7-17-17 Tr. at 49;
Mary Smith Dep. at 16, 29, 30.
247.

Mary Smith indicated that Dr. Foley did not mention the option of her using

restrooms or locker rooms outside of the presence of male students, such as a single-user
restroom in the nurse’s office. 7-17-17 Tr. at 49.
248.

Dr. Foley did not follow-up with Mary Smith after this conversation. 7-17-17 Tr.

249.

Mary Smith has never discussed the general issue of transgender students using

at 49.

the facilities corresponding to their gender identity with Dr. Faidley or Dr. Cooper. Mary Smith
Dep. at 74, 75.
250.

Other than on March 22, 2017, Mary Smith is unaware of any other instance when

she was in a bathroom with a boy identifying as a girl. 7-17-17 Tr. at 49, 50; Mary Smith Dep.
at 30.
also referred to March 21, 2017, as the date of the incident in the 700s Bathroom. See, e.g., Mary Smith Dep. at 76.
Since it appears that the more persuasive evidence shows that this incident occurred on March 22, 2017, the court
has used this date as the date Mary Smith saw Student B in the bathroom. See Pl. Mary Smith’s Response to Defs.’
First Set of Interrog. at 2. Either way, the precise date of this meeting is of limited relevance in addressing the
merits of the instant motion.

53

251.

Mary Smith does not oppose homosexuals using the bathroom or locker room

with her. 7-17-17 Tr. at 60; Mary Smith Dep. at 43.
252.

Mary Smith is familiar with DeStefano and would not have opposed DeStefano, a

transgender male, from using the girls’ locker rooms or bathrooms. 7-17-17 Tr. at 60.
253.

Mary Smith is opposed to having boys who identify as girls in the bathroom with

her because it makes her feel uncomfortable. 7-17-17 Tr. at 50.
254.

Prior to March 22, 2017, Mary Smith would use the BASH bathrooms

approximately three or four times per day. 7-17-17 Tr. at 50; Mary Smith Dep. at 106, 107.
After March 22, 2017, Mary Smith’s bathroom usage “significantly declined” and she avoided
using the main bathrooms. 7-17-17 Tr. at 50. She would use the bathrooms two to four times
per week. Id. at 50, 51; Mary Smith Dep. at 108. Mary Smith changed her bathroom usage
because she felt that she needed to protect herself more. Id. at 51.
255.

If Mary Smith used the bathroom, she would use a two-stall girls’ bathroom near

the nurse’s office. 7-17-17 Tr. at 73, 74.
256.

During the second half of the 2016-17 school year, Mary Smith had gym class

and would use the gym locker room to change every day. 7-17-17 Tr. at 51; Mary Smith Dep. at
39, 40.
257.

When Mary Smith changed for gym class, there were approximately 30-40 girls

in the locker room with her. 7-17-17 Tr. at 55. Typically, she would change for gym by
removing her school clothes and putting on shorts and a t-shirt. Mary Smith Dep. at 42. This
could have included changing her shirt, bra, pants, or underwear if she needed to do so. 7-17-17
Tr. at 56; Mary Smith Dep. at 42.

54

258.

On about three occasions, Mary Smith claims that she was completely undressed

while in the locker room. Mary Smith Dep. at 40, 41.
259.

While in the locker room, Mary Smith would see other girls changing and would

see their bare buttocks and bare chests. 7-17-17 Tr. at 56, 57. She has also viewed about five
other girls’ genitalia in the locker room. Mary Smith Dep. at 141, 142. Mary Smith stated that
she had not observed any other girls’ genitalia in the girls’ bathrooms. Id. at 140.
260.

Although the locker room had three bathroom stalls, Mary Smith did not change

in there because of the “tight fit,” there were girls constantly going in and out of the stalls, and
the stalls were “disgusting.” 7-17-17 Tr. at 51; Pls.’ Ex. P-56.
261.

Mary Smith has never seen a girl using the showers in the girls’ locker room, and

she has never showered after gym class. 7-17-17 Tr. at 58; Mary Smith Dep. at 37-38.
262.

Mary Smith has used a shower stall to change her clothes when she was

menstruating because it allowed her more privacy to change her menstruation-related products.
7-17-17 Tr. at 58. Nonetheless, she has been in the shower stall when other girls have opened
the curtain to see if the shower stall was occupied. Id.
263.

Even if the School District offered Mary Smith the use of the single-user

bathrooms at BASH, this would not resolve her privacy concerns because she “should be
allowed to use any bathroom that has the sign that a female can, a girl.” 34 7-17-17 Tr. at 61. She
believes that she “shouldn’t have to go to different bathrooms. [She] should be able to use the
ones . . . that say girls and know that there are only girls in there.” Id.

34

Mary Smith provided conflicting testimony as to whether she knew about the single-user bathrooms at BASH
being available to her. Compare 7-17-17 Tr. at 60 (stating that she was unaware that there were single-user
bathrooms available at BASH during the 2016-17 school year), with Mary Smith Dep. at 46 (stating that she was
aware of the single-user bathrooms and she believed she could use those bathrooms). In addition, Mary Smith stated
during her deposition that she understood that the School District would allow her to use the private bathrooms at
BASH because of her privacy concerns. Mary Smith Dep. at 48-49.

55

264.

During the 2016-17 school year, Mary Smith used the single-user bathroom at the

nurse’s office to relieve herself and obtain items to assist with her menstruation issues. 7-17-17
Tr. at 71; Mary Smith Dep. at 111. When she used the nurse’s office bathroom to change
menstruation-related products, the door was thick enough that she believed that others could not
hear what she was doing in the room. 7-17-17 Tr. at 73.
265.

Mary Smith does not believe that the stalls in the multi-user bathrooms provide

her with her desired privacy because (1) they only provide protection from the same sex, (2) she
has to take care of her menstruation issues by opening pads or tampons so people could hear her
opening those items, (3) her underwear and pants are on the floor when she is changing (which
could especially be an issue during a menstruation cycle), and (4) there are gaps in the sides of
the stalls where you can make eye contact with other people. 7-17-17 Tr. at 61, 72.
266.

Mary Smith wants the court to allow only girls, or individuals of the same sex as

her, to be in the bathrooms and locker rooms. 7-17-17 Tr. at 62, 67. She defines someone as
having the same sex as her based on “[w]hether they were born male or female, if they have a
vagina or a penis, [and] if they are able to reproduce as a female.” Id. at 67, 68.
267.

Mary Smith is opposed to a biological boy, who gets hormone therapy and/or

surgery on the genitalia to look more like a girl, from using the girls’ room. Mary Smith Dep. at
65-66.
268.

Mary Smith does not know whether she has seen a transgender girl in the locker

room. 7-17-17 Tr. at 65; Mary Smith Dep. at 31.
269.

Mary Smith is opposed to transgender girls using the bathrooms. Mary Smith

Dep. at 64.

56

270.

Mary Smith could not identify someone as transgender simply by the persons’

appearance. 7-17-17 Tr. at 76.
271.

Mary Smith’s grades at BASH have been “good,” and they remained about the

same this past year as they had over time. Mary Smith Dep. at 73.
272.

Since March 21, 2017, Mary Smith has not been treated by any doctors,

psychiatrists, guidance counselors, or psychologists. Mary Smith Dep. at 73, 74. She has not
received any treatment from a healthcare professional relating to the embarrassment and
humiliation she suffered on March 22, 2017. Id. at 104-05.
273.

Mary Smith could not identify any student who pretends to be transgender so they

can use the other sex’s bathrooms or act as a Peeping Tom. Mary Smith Dep. at 80.
274.

Other than her experience in the bathroom on March 22, 2017, Mary Smith could

not identify any threat, disturbance, or other disruption of school activities caused by transgender
students using bathrooms and locker rooms that correspond to their gender identity. Mary Smith
Dep. at 87, 88.
275.

Mary Smith would like the court in this case to “accommodate everyone,” but she

does not know how that can be achieved. Mary Smith Dep. at 45-46.
276.

Mary Smith seeks to have the court prohibit a transgender girl from the girls’

bathroom regardless of what is indicated on the student’s birth certificate, how the teachers and
other students treat the person, and how the person is dressed. Mary Smith Dep. at 65-66. She
wants the court to “allow only girls to be in the bathrooms and the locker rooms.” 7-17-17 Tr. at
62.
277.

Mary Smith brought this lawsuit because “my privacy was violated . . . the school

didn’t protect me.” 7-17-17 Tr. at 61.

57

E.
278.

Plaintiff Macy Roe

Macy Roe is, as of July 11, 2017, an 18-year-old female who was a senior at

BASH for the 2016-17 school year and recently graduated from BASH. July 11, 2017 Trial Dep.
of Macy Roe (“Macy Roe Trial Dep.”) at 5; Macy Roe Dep. at 26.
279.

Since she graduated Macy Roe will not be attending BASH in the fall of the

2017-18 school year. Macy Roe Dep. at 10.
280.

While at BASH, Macy Roe obtained A’s and B’s for her grades, had a 3.9 grade

point average upon graduation, and was ranked in the top 100 students in her class year. Macy
Roe Trial Dep. at 5, 6; Macy Roe Dep. at 59.
281.

Macy Roe “enjoyed” attending school at BASH until learning from Jack Jones

that he was in his underwear when he saw a girl getting dressed in the boys’ locker room. Macy
Roe Trial Dep. at 9, 20; Macy Roe Dep. at 59.
282.

Once she heard this from Jack Jones, she stopped using the girls’ bathrooms as

much as possible. Macy Roe Trial Dep. at 10. She did not completely stop using the bathrooms;
instead, she would use them perhaps once a day when she previously used them two or three
times per day. Macy Roe Trial Dep. at 10; Macy Roe Dep. at 144.
283.

Macy Roe would use the bathroom to relieve herself and tend to her period.

Macy Roe Trial Dep. at 11.
284.

Macy Roe indicated that she felt that it was “terrifying that a boy could walk in”

during a time that she was opening a pad or a tampon. Macy Roe Trial Dep. at 11. She was
particularly concerned because she was aware of a boy who started to wear stereotypical girls’
clothing and asked for a name change. Id. at 10. She was afraid that this student would come
into the bathroom when she was in there. Id.

58

285.

No matter when she would use the bathroom, Macy Roe would go into one of the

toilet stalls and lock the door because she would be uncomfortable using the toilet in front of
anyone, boys or girls. Macy Roe Dep. at 139, 140.
286.

If she had to use the bathroom during the day, Macy Roe would have been less

anxious to use the bathroom in the nurse’s office or somewhere else private. Macy Roe Dep. at
145.
287.

Macy Roe had observed girls changing their shirts (so they would show their

bras) or their pants (so they would show their underwear) in the girls’ multi-user bathrooms.
Macy Roe Trial Dep. at 12; Macy Roe Dep. at 49, 50, 51. During times when Macy Roe
observed students changing, she did not observe anyone’s intimate parts, just their underwear.
Macy Roe Dep. at 51.
288.

Macy Roe has never changed in the common area of the girls’ bathrooms. Macy

Roe Dep. at 51.
289.

Although Macy Roe changed for gym during the first month the locker room was

reopened, she stopped doing so for a reason unrelated to the litigation. Macy Roe Trial Dep. at
13, 19, 20. When she changed, she would change the shirt she was wearing to a gym shirt or
change her pants to shorts. Macy Roe Trial Dep. at 14; Macy Roe Dep. at 39. There could have
been anywhere from 30 to 60 girls in the locker room when Macy Roe changed. Macy Roe Trial
Dep. at 13. She observed other girls changing their bras to sport bras or changing their regular
underwear to thongs if the girls wanted to wear leggings. Id. at 14. Practically each time that
Macy Roe changed in the locker room, she would see other students’ chests or genitalia if those
students changed their bras or underwear. Macy Roe Dep. at 65.

59

290.

Macy Roe never took a shower after gym and never saw another student taking a

shower. Macy Roe Dep. at 39, 40, 44.
291.

Macy Roe does not know whether any transgender student showers at BASH.

Macy Roe Dep. at 44.
292.

Macy Roe is unaware of ever seeing a transgender student in the girls’ locker

room. Macy Roe Dep. at 20, 39, 49.
293.

Macy Roe is unaware of a transgender girl using the bathroom while she was in

there. Macy Roe Trial Dep. at 14-15, 18; Macy Roe Dep. at 20, 31.
294.

Macy Roe cannot tell if someone is male or female, which she believes is based

on their internal and external reproductive systems at birth, simply by looking at the person’s
appearance. Macy Roe Trial Dep. at 18; Macy Roe Dep. at 73, 46, 145.
295.

Macy Roe was unaware of the single-user bathrooms at BASH being available to

her last year. Macy Roe Trial Dep. at 15; Macy Roe Dep. at 48. Macy Roe acknowledged that a
single-user facility would have protected her privacy when using the restroom or changing.
Macy Roe Trial Dep. at 19. Nonetheless, even if the single-user bathrooms had been available to
her, it would not have resolved her privacy concerns at BASH because she should “be able to use
the bathroom of [her] sex without the opposite sex coming in.” Id. at 15, 19; Macy Roe Dep. at
48 (“I should be able to use the bathroom of my sex without my privacy being violated.”).
296.

Macy Roe noted that in the open space of the locker room, “there wasn’t a lot of

privacy. . . . You could see everyone.” Macy Roe Trial Dep. at 13.
297.

Macy Roe was unable to identify any time that her privacy was actually violated

while at BASH. Macy Roe Dep. at 49, 105, 106.

60

298.

Macy Roe indicated that the bathroom stalls at BASH would not give her the

privacy she needed because she could “still be heard going to the bathroom or attending [her]
period, and there are large gaps in the stalls that [she has] made eye contact through before.”
Macy Roe Trial Dep. at 15; see also Macy Roe Dep. at 98, 99 (indicating that in the bathroom
stalls that she used, the gaps are large enough to make eye contact with another student).
299.

Macy Roe has never seen anyone purposefully try to look through the gaps in the

stall doors. Macy Roe Dep. at 105.
300.

Macy Roe does not object to homosexual students using the girls’ locker rooms,

even if those students were sexually attracted to her, since they would have the same sex as her.
Macy Roe Dep. at 45.
301.

Macy Roe does not object to sharing a restroom or locker room with a student

who has a different anatomy than her if, in her opinion, that student was “born female.” Macy
Roe Trial Dep. at 17-18.
302.

Macy Roe would not object to sharing a locker room with a transgender boy who

had surgery to construct a penis. Macy Roe Trial Dep. at 17-18.
303.

Macy Roe did not file an internal complaint about the School District’s practice,

and she did not speak to Dr. Cooper, Dr. Faidley, or Dr. Foley about it. Macy Roe Dep. at 52,
53.
304.

Although she alleges and asserts having suffered anxiety, stress, humiliation,

embarrassment, apprehension, and distress, Macy Roe has not received any medical attention,
counseling, or therapy since learning about the School District’s practice. Macy Roe Dep. at 60,
101, 102, 103, 104. She has also not spoken to her guidance counselor, other administrators, or
any teachers about transgender issues at BASH or about any anxiety or stress she was

61

experiencing at the time. Macy Roe Dep. at. 60, 61, 102. The stress or anxiety did not affect her
grades. Macy Roe Dep. at 102.
305.

Macy Roe does not know any student who has pretended to be transgender just to

use the locker room or bathroom contrary to their gender at birth or to be a Peeping Tom. Macy
Roe Dep. at 63, 64, 71.
306.

Macy Roe believes that the use of bathrooms and locker rooms by transgender

students disrupted her school activities because she held in her bladder all day until she really
needed to use the bathroom. Macy Roe Dep. at 72. She did this because she was in fear of
encountering transgender students (whom she describes as students of the opposite sex). Macy
Roe Dep. at 72.
307.

Macy Roe did not suffer from any bladder infections or other medical conditions

due to having to refrain from using the bathrooms until she absolutely had to do so. Macy Roe
Dep. at 102.
308.

Macy Roe claims that she suffered and continues to suffer irreparable harm

because “every time [she] went to the bathroom [she] had to look around. And now it’s just
become a habit to have to look around. And while I’m in the stall it’s uncomfortable because
you don’t know who’s in there.” Macy Roe Dep. at 104.
309.

Macy Roe is unaware of physical altercations or kids walking out of class because

of the transgender practice at BASH. Macy Roe Dep. at 75.
310.

If Macy Roe entered a public bathroom (outside of school) and noticed someone

that looked like a male, she would leave the restroom. Macy Roe Dep. at 143. She would base
this decision on whether the person was wearing stereotypical male clothing or had facial hair.
Macy Roe Dep. at 143.

62

311.

Macy Roe indicated that swimwear is sometimes more revealing that underwear;

nonetheless, it does not bother her for men and boys to see her in a swimsuit or bikini at a public
pool or beach. Macy Roe Dep. at 42.
F.
312.

Dr. Scott Leibowitz

Dr. Scott Leibowitz received his undergraduate degree from Cornell University

and his Doctor of Medicine degree from Sackler School of Medicine. 7-17-17 Tr. at 133;
Intervenor’s Ex. I-6. He completed his general adult psychiatry residency training at Albert
Einstein College of Medicine, stayed for an extra year there to be chief resident, and then moved
to complete his child and adolescent psychiatry fellowship at Harvard Medical School. 7-17-17
Tr. at 133; Intervenor’s Ex. I-6.
313.

During his fellowship at Harvard Medical School, Dr. Leibowitz received training

from a psychologist who was part of the first gender identity multidisciplinary clinic in the
United States. 7-17-17 Tr. at 133-34; 7-31-17 Tr. at 8, 9, 10. This particular psychologist, along
with Dr. Leibowitz, had, at different points in time, received training from the Dutch Clinic in
the Netherlands, which is “widely known in the world as the most leading research and clinical
gender identity program.” 7-17-17 Tr. at 134.
314.

This first gender identity multidisciplinary clinic in the United States focusing on

adolescents is about ten years old, and eight of the top ten children’s hospitals as ranked by U.S.
News and World Report now have clinics similar to it. 7-31-17 Tr. at 9.
315.

Dr. Leibowitz is currently licensed to practice medicine in Ohio. 35 7-17-17 Tr. at

185 & Intervenor’s Ex. I-6.

35

Dr. Leibowitz also believed that he was still licensed to practice medicine in Illinois; yet, he noted that his
“license expires any day.” 7-17-17 Tr. at 185.

63

316.

Dr. Leibowitz is currently the medical director for the behavioral health

component of the THRIVE gender and sex development program at Nationwide Children’s
Hospital in Columbus, Ohio, which is affiliated with Ohio State University. 7-17-17 Tr. at 134.
In this position, he treats young people with gender identity issues. Id. at 134-35.
317.

Since November 2016, approximately 55% of Dr. Leibowitz’s time is spent in

clinical practice. 7-17-17 Tr. at 187; 7-31-17 Tr. at 28.
318.

Dr. Leibowitz is also an associate clinical professor at Ohio State.36 7-17-17 Tr.

319.

Dr. Leibowitz has significant experience devoted to youth with gender issues. 7-

at 136.

17-17 Tr. at 135, 136. This experience includes directly treating approximately 300 youth and,
through his indirect involvement as part of the multidisciplinary team consisting of
endocrinologists, pediatric psychologists, social workers, and adolescent medical physicians,
hundreds of additional youth. Id. at 136. This experience also includes an under-estimation of
having spent a minimum of 4,000 hours over the past almost nine years directly addressing, faceto-face, gender identity issues with youth. 7-31-17 Tr. at 29, 30.
320.

Dr. Leibowitz has authored numerous publications on the subject of gender

identity issues in children and adolescents, with approximately 40%-50% of those publications
having been subject to peer review. 7-17-17 Tr. at 136, 137 & Intervenor’s Ex. I-6.
321.

Dr. Leibowitz is a member of numerous professional associations including,

among others (1) the American Academy of Child and Adolescent Psychiatry, in which he serves
as the co-chairman of the Sexual Orientation and Gender Identity Issues Committee, and (2) the

36

Dr. Leibowitz had other faculty appointments and, since none of those appointments were at institutions that
provide clinicians with a tenure-track option, he has not served as a tenured full professor or a tenured associate
professor at those institutions because he was a clinician and not a researcher. 7-17-17 Tr. at 197, 202-03.

64

World Professional Association of Transgender Health (“WPATH”), which serves individuals
with gender identity concerns or professionals who treat those concerns. 7-17-17 Tr. at 138.
322.

The term “transgender” is an “identity term that people use” where individuals

whose sex assigned at birth is not congruent with their gender identity. 7-17-17 Tr. at 143. An
individual’s “gender identity” is “one’s subjective, deep-core conviction sense of self as a
particular gender. In most situations, male or female, but maybe [sic] some aspect of both, or in
between.” Id. at 143. It is also described as “one’s personal sense of self as a particular gender,
whether that be male or female, in most cases, or a combination thereof in select individuals.” 731-17 Tr. at 5-6.
323.

Transgender refers to a person’s self-assertion of their identity. 7-31-17 Tr. at 85,

324.

Typically, sex is assigned at birth when doctors examine a baby after birth and,

97.

based on the presence of a penis or a vagina, assign a sex of male if the baby has a penis or
female if the baby has a vagina. 7-17-17 Tr. at 143.
325.

Dr. Leibowitz would define “sex” “in a medical sense as being the anatomical and

physiological processes that lead to or denote male and female, typically.” 7-31-17 Tr. at 6.
326.

Dr. Leibowitz would define “gender” as “a broader societal construct that really

encompasses gender rule, which is [how] society defines what male or female is within a certain
cultural context[, and] [i]t also encompasses gender identity.” 7-31-17 Tr. at 6.
327.

There are 1.4 million American adults identifying as transgender, which is 0.6%

of the adult population. 7-17-17 Tr. at 143-44. Dr. Leibowitz does not have the precise number,
but he believes that it is possible that there are more children who identify as transgender. Id. at
144.

65

328.

A transgender boy is a person who has a lasting, persistent male gender identity

but was assigned the sex female at birth.

Intervenor’s Ex. I-13, Expert Decl. of Scott F.

Leibowitz, M.D. (“Leibowitz Decl.”) at ¶ 5. A transgender girl is a person who has a lasting,
persistent female gender identity but was assigned the sex male at birth. Id.
329.

“Cisgender” is a term used to refer to someone that is not transgender. 7-17-17

Tr. at 161.
330.

According to Dr. Leibowitz, the term “transsexual” is “a term that had previously

been used to indicate individuals who had gone through the complete transition. So those who
have gone through what some call sex reassignment surgery[.]” 7-31-17 Tr. at 81. Dr. Leibowitz
further explained that “from the term transsexual, the [term] transgender has evolved to indicate
largely the larger overwhelming group of people, whether they’ve pursued some degree of
transition or not, socially, medically, or surgically, and is more acceptable because people can’t
afford the surgeries.” Id.
331.

Dr. Leibowitz noted that “gender fluid” is not a clinical term, but it “describes

kind of feeling a certain gender at a certain moment in time, and then switching, and then
switching, perhaps, back.” 7-17-17 Tr. at 169. It is a “temporal relationship with gender.” Id.
332.

Gender dysphoria is “both a clinical phenomen[on]” and a reference to “clinical

distress that one experiences when their birth-assigned sex and their gender identity are at odds
with one another, with the stipulation that there are no perceived cultural advantages to the
gender identity that one experiences.” 7-17-17 Tr. at 144-45. This distress must last at least six
months. Id. at 145.
333.

Gender dysphoria was added to the DSM-V when it was released four years ago.

7-17-17 Tr. at 144, 145; 7-31-17 Tr. at 11. Within the DSM-V, the clinical classification

66

changed from “gender identity disorder” to gender dysphoria. 7-17-17 Tr. at 145; 7-31-17 Tr. at
11. This change occurred in part because (1) by changing the terminology, it pertained more to
the clinical experience and distress experienced by some individuals identifying as transgender,
and (2) the prior terminology “didn’t accurately capture individuals who experienced gender
dysphoria, the insistence of being another gender[, and i]t was more capturing kids who were
gender nonconforming.” 7-17-17 Tr. at 145, 146; 7-31-17 Tr. at 11.
334.

There is a “variability of time in which it can take . . . to appropriately diagnose

whether someone meets the criteria for gender dysphoria,” and this could on occasion, take about
half of a year to determine that a person did not have gender dysphoria and even more time to
determine if the person had gender dysphoria. 7-31-17 Tr. at 52, 53; see also Pls.’ Ex. P-65, July
7, 2017 Deposition of Scott Leibowitz, M.D. (“Leibowitz Dep.”) at 41-42.
335.

Dr. Leibowitz indicated that the newer, better “psychometric instruments” he uses

to diagnose gender dysphoria are in the process of, but have not yet been, scientifically validated
as “we’re in a field in evolution.” 7-31-17 Tr. at 46.
336.

Someone who is gender dysphoric may ultimately identify with a non-binary

gender. 7-31-17 Tr. at 57. Someone who is “gender non-binary” is “an individual whose gender
does not fall into the dichotomous male/female categories” and “identif[ies] somewhere in the
middle.” 7-17-17 Tr. at 170. Of those individuals identifying as “gender non-binary” whom Dr.
Leibowitz has treated, these patients generally do not discuss with him a desire to use a specific
bathroom. Id. at 171, 172.
337.

“Gender nonconforming” is a broader term that refers to a person whose gender

expression is different from what is traditionally associated with their sex assigned at birth; for
example, a girl may be said to be gender nonconforming when she rejects the clothes or

67

behaviors that our society associates with young females, but that does not mean that she will, or
will not, identify herself with something other than female.

7-31-17 Tr. at 82.

Gender

nonconformity is not a diagnosis. Id. at 84.
338.

Being transgender is not a medical or psychiatric condition, but many people who

are transgender experience a clinically significant level of distress because of the incongruence
between their gender identity and their sex assigned at birth. 7-31-17 Tr. at 148. Also, all
transgender people do not have gender dysphoria because the incongruence they experience is
insufficient for them to feel distressed in a manner that leads them to seek reassignment of their
gender or to transition their genders. 7-17-17 Tr. at 147, 148; 7-31-17 Tr. at 96, 97.
339.

Dr. Leibowitz indicated that the issue of whether transgender is a mental illness or

mental condition is “a big debate that many scholars have spent hours and papers writing about.”
7-31-17 Tr. at 85.
340.

There are accepted standards in the medical and mental health fields for treating

gender dysphoria in adolescents, with these standards being documented in the Endocrine
Society Guidelines and in the WPATH Standards of Care (currently in its seventh edition). 7-1717 Tr. at 150, 151, 198; Intervenor’s Ex. I-19, WPATH Standards of Care. Dr. Leibowitz
follows those standards when treating patients at his clinic. 7-31-17 Tr. at 61-62.
341.

With regard to the WPATH Standards of Care, both the American Academy of

Child and Adolescents in Psychiatry and the American Psychological Association have
guidelines and practice parameters that cite to and adhere to the WPATH Standards of Care. 717-17 Tr. at 152. Many major medical or mental health professional organizations, including the
American Medical Association, the American Psychological Association, and the American

68

Psychiatric Association, accept the WPATH Standards of Care as the appropriate protocols. 731-17 Tr. at 63.
342.

The WPATH Standards of Care are widely used and accepted in the field by

clinicians dealing with youth with gender identity issues. 7-17-17 Tr. at 151.
343.

The risk of not treating a “gender dysphoric adolescent has significant and

substantially higher psychiatric outcomes, poor psychiatric outcomes,” which include suicide,
self-injury, suicidal ideation, and suicidal behavior. 7-17-17 Tr. at 158.
344.

“Transgender youth are at [a] much higher risk for suicidal behavior when

compared to youth who are not transgender.” Leibowitz Decl. at ¶ 25. “Peer reviewed research
demonstrates that as many as 45% of gender dysphoric adolescents have had thoughts of suicide
compared to 17% in this age group in 2015.” Id.; see also 7-31-17 Tr. at 77 (explaining studies).
345.

“Numerous data from gender clinic referred samples indicate that co-occurring

psychiatric diagnoses occur in much higher rates in youths with gender dysphoria, such as
depression, anxiety, self-injurious behavior, and suicidal ideation.” Leibowitz Decl. at ¶ 25.
346.

Dr. Leibowitz acknowledged that “[i]t is impossible to know the rate of suicide

for transgender people” in part because it is impossible to know the number of transgender
people in the population since “transgender people are largely a hidden population.” 7-31-17 Tr.
at 45.
347.

“The goal of treatment in gender dysphoria in adolescents is to help one not

experience that internal sense of chaos that they live day-to-day, being and feeling as though they
were born with a sex assigned at birth that differs from their core sense of self, that deep
conviction of who they are.” 7-17-17 Tr. at 159.

69

348.

It is unethical to treat gender dysphoria by attempting to align an adolescent’s

gender identity with the adolescent’s sex assigned at birth. 7-17-17 Tr. at 159, 160; 7-31-17 Tr.
at 78-79 & Intervenor’s Ex. I-19 at p. 16 (“Treatment aimed at trying to change a person’s
gender identity and expression to become more congruent with sex assigned at birth has been
attempted in the past without success . . ., particularly in the long term. Such treatment is no
longer considered ethical.” (citations omitted)). The “consensus among different disciplines
suggests that it is harmful to try to change someone’s gender identity, gender expression, and/or
sexual orientation for that matter.” 7-17-17 Tr. at 160.
349.

Among the accepted clinical interventions to treat adolescents with gender

dysphoria include, independently or in combination: social transition, pubertal suppression,
hormone therapy, and, in some cases, surgery. Leibowitz Decl. at ¶ 13; 7-17-17 Tr. at 152-59; 731-17 Tr. at 46, 47, 48, 65, 66; Intervenor’s Ex. I-19 at pp. 15-16, 18-21. The WPATH
Standards of Care require parental consent before beginning hormone therapy or other physical
interventions when treating adolescents who are under 18 years of age. 7-31-17 Tr. at 67.
350.

Adolescents treated with puberty suppressing drugs do not go through puberty of

their assigned sex at birth; as examples, (1) an adolescent who was assigned female at birth will
not develop breasts or widening of the hips, and (2) an adolescent who was assigned male at
birth will not develop an Adam’s apple, facial hair, chest hair, broadening of the shoulders,
increase in muscle mass, squaring of the jaw, or a deepening of the voice. Leibowitz Decl. at ¶
27.
351.

Hormone therapy – providing testosterone for transgender boys and estrogen for

transgender girls – produces secondary sex characteristics that match one’s gender identity. 717-17 Tr. at 155, 156; Leibowitz Decl. at ¶ 28. “Transgender females receiving estrogen will

70

develop breasts and the muscle mass and fat distribution typical of females. Transgender males
receiving testosterone will develop facial and body hair, a deeper voice, and muscle mass typical
of males.” Leibowitz Decl. at ¶ 28.
352.

A transgender boy who has been treated with puberty blockers and testosterone

treatment could be virtually indistinguishable when clothed from a cisgender boy. 7-17-17 Tr. at
161, 162; 7-31-17 Tr. at 65, 66, 67; see also Leibowitz Decl. at ¶ 27. Similarly, a transgender
girl who has been treated with puberty blockers and hormone therapy could be virtually
indistinguishable when clothed from a cisgender girl.

7-17-17 Tr. at 161, 162; see also

Leibowitz Decl. at ¶ 27. Nonetheless, “[a]s a result of the [different types of available] medical
treatments . . . for gender dysphoria in adolescents, transgender adolescent males will not
necessarily align physically with cisgender girls, and transgender adolescent females will not
necessarily align physically with cisgender males. Leibowitz Decl. at ¶ 29.
353.

For transgender boys, another clinical intervention that may be used in

adolescents is “top surgery,” i.e. a mastectomy to remove the breast tissue and create a male
chest. 7-17-17 Tr. at 159.
354.

Very few persons in any high school have undergone surgery of their reproductive

anatomy. 7-31-17 Tr. at 86.
355.

Determining the proper intervention for a particular adolescent is a case-by-case

determination resulting from a collaborative process and considering the advantages and
disadvantages of a particular intervention. 7-31-17 Tr. at 46-47.
356.

Social transition refers to the process of living in accordance with one’s gender

identity, such as where a transgender girl might adopt a name traditionally associated with girls,
use feminine pronouns, grow her hair, or change the pitch of her voice. Leibowitz Decl. at ¶ 14;

71

7-17-17 Tr. at 153-54. Social transition could also involve using single-sex facilities, like
restrooms or locker rooms, consistent with one’s gender identity. 7-17-17 Tr. at 154, 162; 7-3117 Tr. at 50.
357.

Social transitioning is in part a diagnostic tool and a remedial tool to determine

whether and to what extent living in the affirmed gender improves the psychological and
emotional functioning of the individual. 7-31-17 Tr. at 52. Thus, social transitioning can be
used to diagnose whether an individual has gender dysphoria. 7-31-17 Tr. at 47, 48, 50, 56.
358.

Social transitioning can occur in increments, such as where the adolescent starts

living in the affirmed gender at home or on vacation. 7-31-17 Tr. at 47. After the incremental
social transition, Dr. Leibowitz would confer with the patient again to see whether the transition
helped alleviate the patient’s distress. Id. at 48. In other words, “in certain situations, that type
of intervention could lead one to feeling better about oneself and more willing and more able to
pursue this further. And in other situations, it would lead that person to feeling, you know,
perhaps this is something that I am purely just not ready for.” Id.
359.

Dr. Leibowitz explained that when determining whether social transitioning is an

appropriate treatment for a particular individual, it is not his “role as a clinician to determine a
preset course for a specific individual.” 7-17-17 Tr. at 154. He acknowledged that there is
“limited evidence” on this issue and, as such, “we want to be cautious in how we approach these
issues.” 37 Id. Thus, he does not dictate when a patient should do something; instead, “there’s a
careful risk-benefit analysis that happens step-by-step, and sometimes it even starts with just a
simple change in a home environment, in the privacy of their home.” Id. at 154, 155.
37

Regarding the “limited evidence,” Dr. Leibowitz explained that although there was limited “level one evidence,”
such as a randomized control study with a placebo, but there is “actually plenty of level two evidence.” 7-31-17 Tr.
at 54. Dr. Leibowitz notes that there are “plenty of aspects of emotional health and psychological health,” which do
not have level one evidence such as randomized control studies and yet have courses of treatment that are generally
accepted in the field of psychiatry. Id. at 67, 68.

72

360.

With regard to social transition involving using sex-segregated spaces, such as a

bathroom or locker room, consistent with one’s gender identity, and the significance of it, Dr.
Leibowitz explained that for “an individual where their gender identity and their sex anatomy are
incongruent, particularly, of course, those who meet criteria for gender dysphoria, it chips away
and it erodes at your psychological wellbeing and your wholeness.”

7-17-17 Tr. at 163.

Additionally, if an adolescent with gender dysphoria is prohibited from using facilities matching
the adolescent’s gender identity, “it sends a message to them that what they’re [sic] experience
is, who they are is not . . . valid. It’s not an identity that is appreciated. It is society reducing
them to their genital[s].” Id. at 164; see 7-31-17 Tr. at 72 (“[W]hen someone forces or society
forces an individual to use a restroom based on the sex that they were assigned at birth, operative
word being ‘forced,’ that can erode their psychological wellbeing and it can reduce them to the
presence of a genital.”).
361.

If an adolescent is barred from a sex-segregated facility matching their gender

identity the barred adolescent will more frequently refrain from urinating; in addition, “certain
data suggests that there are much higher rates of not going to school, leaving school, cutting
class, leaving the school to find a bathroom . . . that they feel comfortable using where nobody
knows them.” 7-17-17 Tr. at 164; see also id. at 177-78; 7-31-17 Tr. at 71, 72; Leibowitz Decl.
at ¶ 22. Thus, “educational effect, self-esteem and depression are, perhaps, not a direct effect,
but all part of the general gestalt of not being able to use any type of facility that’s consistent
with your deep conviction and sense of self as to who you are.” 7-17-17 Tr. at 164-65; see also
Leibowitz Decl. at ¶ 20 (explaining that forbidding adolescents from using restrooms and other
sex-segregated facilities consistent with their gender identity “often negatively impacts their self-

73

esteem and self-worth, ability to trust others, and willingness to go out into the world, during a
critical aspect of development”). Additionally,
these youth are hampered in their ability to access opportunities traditionally
associated with growing up and maturing into an adult, such as getting a job or
exploring educational enrichment opportunities. The loss of these activities
during an important developmental stage of youth can have long term
consequences on an individual’s financial and employment prospects later in life,
which can lead to many other psychiatric concerns.
Leibowitz Decl. at ¶ 22.
362.

Dr. Leibowitz acknowledged that he could not state that an adolescent will

“automatically” have a particular type of distress if forced to use facilities not aligning with the
adolescent’s gender identity; yet, he indicated that “it can exacerbate psychiatric illness. And
there is plenty of level two evidence, cohort studies, prospective studies that demonstrate that
harm.” 7-31-17 Tr. at 72, 73.
363.

When adolescents with gender dysphoria are able to use the restrooms and locker

rooms corresponding to their gender identity it can have a positive effect on their mental
wellbeing. 7-31-17 Tr. at 70. In this regard, the burden of being unable to use the facility
consistent with their gender identity is lifted. Id. Also, these adolescents “feel this sense of
relief, this sense of emotional alignment, [and] this sense of happiness.” Id. at 71; see also
Intervenor’s Ex. I-14, Decl. of Aidan DeStefano in Supp. of Mot. for Leave to Intervene
(“DeStefano Decl.”) at ¶ 11 (indicating that being able to use the male facilities at BASH “feels
so good – I am finally ‘one of the guys’, something I have waited for my whole life”); id. at ¶ 12
(“Being able to be my true self is more important than I can describe. I am on track to make the
Honor Roll for the third marking period in a row, something I have never done before because I
was too distracted and stressed.”).

74

364.

Forcing transgender youth to use a “separate single-user restroom could

undermine the benefits of their social gender transition by sending the message that they are not
really who they identify as.” Leibowitz Decl. at ¶ 23. It is also “stigmatizing for the individuals
required to use them by reinforcing a sense of ‘otherness.’” Id.
365.

Most of the young people treated by Dr. Leibowitz have chosen to use a single

stall or single-user restroom or facility. 7-17-17 Tr. at 172. Dr. Leibowitz indicated that in his
experience, transgender youth are choosing to use private facilities rather than group settings
“because they have not yet beg[u]n to feel comfortable living fully . . . in the gender role of their
gender identity.” 7-31-17 Tr. at 51.

To the extent that transgender students would feel

uncomfortable changing in a group setting, such as in a sex-segregated facility, Dr. Leibowitz
finds it reasonable that the patient would choose a separate, private facility to be comfortable. 731-17 Tr. at 58.
366.

Transgender youth who meet the clinical criteria for gender dysphoria are far

more likely to want to conceal their physical anatomy and are typically extremely hypervigilant
within sex-segregated situations. Leibowitz Decl. at ¶ 21; 7-17-17 Tr. at 180, 181. Also, “[o]ne
of the criteria of the diagnostic classification Gender Dysphoria in Adolescence and Adulthood is
a desire to be perceived as another gender and a rejection of aspects of their body that connote
their assigned sex at birth.” Leibowitz Decl. at ¶ 21.
367.

Transgender patients are also particularly modest about exposing themselves

while using privacy facilities. 7-31-17 Tr. at 58.
368.

A number of professional organizations, which include, among others, the

American Medical Association, the American Psychological Association, the American
Psychiatric Association, the National Association for Social Work, and the American Academy

75

of Child and Adolescent Psychiatry, have taken the position that individuals with gender
dysphoria should not be forced to use a restroom that is not in accordance with their gender
identity. 7-17-17 Tr. at 165; Leibowitz Decl. at ¶ 26.
369.

As a clinician, Dr. Leibowitz does not decide which bathroom a person should

use, or decide a person’s gender; instead, “[i]t’s up to me to determine whether [the person]
meet[s] criteria for gender dysphoria.” 7-17-17 Tr. at 171.
370.

Some of Dr. Leibowitz’s patients have received permission from schools to use

facilities consistent with their gender identity and some have not. 7-17-17 Tr. at 166, 167. Dr.
Leibowitz believes that the reason that schools have not allowed students to use facilities
consistent with their gender identity is a “lack of education” insofar as “[s]ociety has not caught
up” with the medical community and he does not “believe that there is a pervasive, prevailing
comfort with individuals who differ in terms of their gender identity and their sex anatomy.” 717-17 Tr. at 168.
371.

Although Dr. Leibowitz has not conducted or published any 30-year, 10-year, or

5-year follow-up studies on his patients who went through gender affirmation using his treatment
methods, he noted that he is not obligated to conduct research on patients when providing
clinical care. 7-17-17 Tr. at 197. Dr. Leibowitz also pointed out that his treatment and therapies
are Standard of Care recommended therapies. Id. at 198.
372.

Dr. Leibowitz believes that transgender students “need to have accommodations

provided to them that don’t discriminate against them and exacerbate the very harm that we in
clinical practice are trying to address.” 7-31-17 Tr. at 91.
373.

Dr. Leibowitz indicated that there have not been any results from the first-of-its-

kind (in the United States) study by the United States National Institutes of Health, which was

76

studying adolescents and the safety of the medical treatments offered for gender dysphoric
patients. 38 7-31-17 Tr. at 18-19.
374.

Dr. Leibowitz could not provide statistical information about the probability that

his gender dysphoric patients might eventually be harmed by him following the Standards of
Care when treating them. 7-31-17 Tr. at 32-34. Dr. Leibowitz indicted that he could not
quantify the risks of harm, but noted that the WPATH Standards of Care discuss the levels of
potential risk that one may encounter with certain interventions. Id. at 33.
375.

When Dr. Leibowitz is treating a patient, he is only advocating for and medically

treating that patient and is not considering the reaction of others to the treatment (unless a
Tarasoff obligation arises). 7-31-17 Tr. at 59-60.
376.

Dr. Leibowitz believes it would be unethical (because it is unethical to drive

toward affirmation of sex) to conduct a randomized controlled study to compare social
reinforcement through access to sex-segregated facilities versus not allowing access. Leibowitz
Dep. at 83-84. In addition, no such study exists. Id.
377.

Dr. Leibowitz stated that he was untrained to make school policy decisions about

how a school is supposed to know whether an individual is gender nonconforming or gender
dysphoric. 7-31-17 Tr. at 92.
378.

In Dr. Leibowitz’s opinion, society needs to have private facilities “for all

individuals who are uncomfortable with all bodies,” in other words, “schools should provide . . .
a private bathroom for kids, non-transgender or transgender, to use should differing body types
evoke or elicit discomfort.” 39 7-31-17 Tr. at 93, 94.

38

Dr. Leibowitz noted that there was a European study as well, and results have come in from that study. 7-31-17
Tr. at 18, 19.
39
Dr. Leibowitz briefly discussed adolescents’ exposure to different sex nudity, and indicated that anyone can be
uncomfortable with nudity including, for example, a boy being uncomfortable with another boy’s nudity. 7-17-17

77

379.

Dr. Leibowitz acknowledged that the issue before the court was “complex,” and

the medical field dealing with gender identity issues is “a field in evolution.” 7-31-17 Tr. at 94.
380.

Dr. Leibowitz is qualified as an expert in gender dysphoria and gender identity

issues in children and adolescents and the court accepted him as an expert in those areas. 40 7-3117 Tr. at 103. Dr. Leibowitz’s testimony was reliable and relevant. 41
G.
381.

Aidan DeStefano

DeStefano is, as of July 17, 2017, an 18-year-old transgender male who graduated

from BASH after the 2016-17 school year. 7-17-17 Tr. at 211, 212, 213, 237. DeStefano always
attended school in the School District. Id. at 212.
382.

Despite being designated as female at birth, DeStefano has always identified as

male. 7-17-17 Tr. at 213.

Tr. at 178, 179. In addition, he believes that if a treated transgender boy, with a beard, a deep voice, and a changed
musculature was placed into a girls’ locker room and exposed some nudity to the cisgender girls, this could be
discomforting to them too. Id. at 179. Since the discomfort could “happen for anybody anywhere,” Dr. Leibowitz
believes that “this is . . . not about a matter of discomfort with the nudity and more about forcing an individual to be
somewhere . . . that’s just incongruent with their deep conviction of who they are, and not about giving people the
choice should they feel uncomfortable with nudity in general.” 7-17-17 Tr. at 180.
40
The court overruled the plaintiffs’ objection to the court accepting Dr. Leibowitz as an expert.
41
Rule 702 of the Federal Rules of Evidence requires that (1) an expert witness is qualified, (2) the testimony is
reliable, and (3) the testimony assist the fact-finder. Fed. R. Evid. 702. The court acts as a gatekeeper to determine
whether the proffered evidence satisfies Rule 702. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). As
illustrated by Dr. Leibowitz’ extensive education and experience in the field dealing with gender dysphoria and
gender identity issues with youth, he is well qualified to provide expert testimony in this case.
Dr. Leibowitz’s testimony is reliable because he follows the WPATH Standards of Care, which are
accepted treatment protocols and recognized by major medical organizations such as the American Medical
Association and the American Psychological Association. See De’lonta v. Johnson, 708 F.3d 520, 522-23 (4th Cir.
2013) (“The Standards of Care, published by [WPATH], are the generally accepted protocols for the treatment of
[gender identity disorder].”). Although the plaintiffs objected to Dr. Leibowitz’s testimony because, inter alia, the
scientific support for the discussed treatment for gender dysphoria was not yet subjected to randomized, controlled
trials, the court found Dr. Leibowitz’s testimony that he followed the Standards of Care credible and persuasive as to
the reliability of his testimony. Additionally, Dr. Leibowitz noted an inability due to ethical considerations to
placebo-control studies in certain areas. Despite those types of studies being unavailable, his testimony was still
reliable. See, e.g., In re Tylenol (Acetaminophen) Mktg. Sales Practices & Prod. Liab. Litig., 198 F. Supp. 3d 446,
454-58 (E.D. Pa. 2016). Dr. Leibowitz appeared to be well-versed on the studies and research that was available
and spoke extensively about his significant experience dealing with patients.
As for the final requirement for admissibility, Dr. Leibowitz’s testimony was relevant to provide
background on gender identity issues and the types of treatments patients may receive for gender dysphoria and
other gender identity issues.

78

383.

DeStefano dresses like a male, has a deep voice like a stereotypical male, and

styles his hair like a male. 42 7-17-17 Tr. at 234 & Intervenor’s Ex. I-4.
384.

At his recent graduation, DeStefano wore a black gown like the other male BASH

students. 7-17-17 Tr. at 234.
385.

DeStefano started identifying as male while attending junior high school in the

School District. 7-17-17 Tr. at 213.
386.

DeStefano attempted to use the girls’ bathroom in seventh grade and the reaction

that he received from the girls “wasn’t good.” 7-17-17 Tr. at 213. The girls told DeStefano
never to return to the bathroom because they thought he was a male. Id.
387.

From seventh through ninth grade at the junior high school, DeStefano used the

nurse’s bathroom because that was where he felt he could go. 7-17-17 Tr. at 213-14, 225.
388.

DeStefano played on the girls’ basketball and track and field teams during junior

high and changed in the girls’ locker room when preparing for games and practices. 7-17-17 Tr.
at 214, 215.
389.

When DeStefano started at BASH for tenth grade, he again initially attempted to

use the girls’ bathroom just to see what it was like. 7-17-17 Tr. at 216. The girls’ reaction to
DeStefano “was beyond what [he] expected. It was worse. [He] got yelled at by literally
everyone that was in there.” Id. They told him not to come back. Id. The girls also “stared at
[him], because [he] did not look like the girls in that bathroom.” DeStefano Decl. at ¶ 4.
390.

Although DeStefano wanted to use the boys’ bathroom, he was concerned for his

safety. 7-17-17 Tr. at 216. After speaking to his counselor, they decided that DeStefano would
again use the nurse’s office to use the bathroom. Id. at 216, 217. He used the nurse’s bathroom

42

As the court observed DeStefano testify, the court can confirm that he appears like a stereotypical male.

79

for tenth and eleventh grades. Id. at 218, 219. That was where he “was the most comfortable.”
Id. at 219.
391.

DeStefano was “fine” using the nurse’ bathroom because he had used it

throughout junior high school. 7-17-17 Tr. at 216.
392.

In 2015, DeStefano started hormone replacement therapy and started testosterone.

7-17-17 Tr. at 217.
393.

In May 2016, DeStefano legally changed his first name to Aidan. 7-17-17 Tr. at

394.

In tenth grade at BASH, DeStefano played on the girls’ cross-country and track

217.

and field teams. 7-17-17 Tr. at 218. During his senior year at BASH, DeStefano ran as a
member of the boys’ cross-country team. Id. at 218, 221.
395.

DeStefano decided not to participate in girls’ sports after beginning to take

hormones. 7-17-17 Tr. at 245.
396.

DeStefano was named to BASH’s homecoming court as a male member, and was

almost named homecoming king. 7-17-17 Tr. at 222, 223, 224.
397.

During his senior year, DeStefano’s counselor stated that he could use the

bathroom and locker room corresponding to his gender identity, i.e. the boys’ bathroom and
locker room. 7-17-17 Tr. at 219, 220.
398.

DeStefano “loved hearing” that he was allowed to use the boys’ facilities as a

senior. 7-17-17 Tr. at 229, 246. He could not put into words how it felt to be able to go into the
bathroom “[he was] supposed to go into.” Id. at 229. He was “speechless.” Id. at 243, 246.
399.

During the beginning of the school year when the locker room was still under

construction, DeStefano took it upon himself to check with his peers to see if they were ok with

80

him using the facilities because he did not want to create a problem. 7-17-17 Tr. at 219, 220,
225. He did not receive any opposition, so he used the male facilities. Id. at 220.
400.

If DeStefano had received opposition to using the boys’ facilities, he “probably

would have just changed in the nurse’s bathroom” to avoid a confrontation. 7-17-17 Tr. at 220.
401.

When DeStefano changed for gym class, he would take off all clothes except for

his boxers. 7-17-17 Tr. at 227.
402.

Regarding his experience in the boys’ locker room and bathrooms, DeStefano

indicated that he has “no trouble in the bathrooms or locker room. Sometimes someone stares,
but usually I am treated just like all of the other guys. No one harasses me or questions me. The
support from the students is really amazing.” DeStefano Decl. at ¶ 13.
403.

Although DeStefano had permission to use the boys’ bathroom, he still used the

nurse’s bathroom “quite frequently.” 7-17-17 Tr. at 224.
404.

DeStefano went on the senior trip to Disney World during which he stayed

overnight with his cousin, who is a female. 7-17-17 Tr. at 226, 227. There was some discussion
about DeStefano staying with other girls, but in the end the girls’ parents would not consent to
those overnight accommodations. Id. at 226, 227, 230, 231.
405.

Although he would have liked to room with boys, he accepted staying with a girl

because those were the school rules. 7-17-17 Tr. at 231.
406.

DeStefano has never been questioned when he used the men’s room in public and

had used the men’s room in the courthouse on the date of his testimony in this case. 7-17-17 Tr.
at 234, 235.
407.

Throughout his life, DeStefano has not experienced any bullying, questioning, or

physical altercations, and he “didn’t get discriminated” against. 7-17-17 Tr. at 237, 241, 242.

81

408.

If the School District had ceased allowing him to use the boys’ facilities while at

BASH, it would have been “disheartening” to him. 7-17-17 Tr. at 229.
409.

When indicating what advice he would give other transgender students at BASH,

DeStefano referenced his success with making sure that the people in the locker room accepted
him before he went in, and then, if the others did not like it, he recommended that the
transgender students (1) use the nurse’s office, (2) change in a stall, or (3) wear gym clothes
under school clothes. 7-17-17 Tr. at 244-245.
410.

DeStefano “see[s] both sides” of the issue at BASH.

7-17-17 Tr. at 243.

DeStefano heard from some students saying that they were uncomfortable before with a
transgender dressing in the locker room, but upon hearing this, he told them to “maybe change
into [sic] a stall.” Id. at 243.
H.
411.

Miscellaneous

A male student, Student G, was an 11th grade student at BASH during the 2016-

17 school year. Joint Stip. of Facts at ¶ 1.
412.

In the spring semester, shortly after the filing of the lawsuit in this case, Student G

was in the boys’ bathroom near the new high school auditorium when he observed two students
enter the bathroom. Joint Stip. of Facts at ¶ 2. Student G believed that the two students were
10th grade girls. Id.
413.

A male student, Student H, was an 11th grade student at BASH during the 2016-

17 school year. Joint Stip. of Facts at ¶ 3.
414.

Student H also observed two students he identified as girls in a boys’ bathroom

during the spring semester. Joint Stip. of Facts at ¶ 3.

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415.

Students G and H jointly met with Dr. Foley to report their respective experiences

in the boys’ bathrooms at BASH. Joint Stip. of Facts at ¶ 4.
416.

Dr. Foley advised Students G and H that he intended to check the school’s

surveillance cameras and investigate. Joint Stip. of Facts at ¶ 5.
417.

The results of Dr. Foley’s investigation, if any, are unknown. Joint Stip. of Facts

at ¶ 6.
V.
A.

DISCUSSION

Standard – Motion for a Preliminary Injunction

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008); see Kos Pharm., Inc. v. Andrx Corp., 369
F.3d 700, 708 (3d Cir. 2004) (“Preliminary injunctive relief is an extraordinary remedy and
should be granted only in limited circumstances.” (citation and internal quotation marks
omitted)). A district court should not grant a motion for preliminary injunctive relief unless the
moving party shows “(1) a likelihood of success on the merits; (2) that [the moving party] will
suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not
result in even greater harm to the nonmoving party; and (4) that the public interest favors such
relief.” Kos Pharm., Inc. 369 F.3d at 708 (citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d
153, 158 (3d Cir. 1999)). Additionally, to obtain a preliminary injunction, the moving party
must establish its entitlement to such relief by clear evidence on the merits of its claim. See
Winter, 555 U.S. at 22 (explaining that “a preliminary injunction . . . is . . . an extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such
relief”).

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Regarding the application of the four factors referenced above,
a movant for preliminary equitable relief must meet the threshold for the first two
“most critical” factors: it must demonstrate that it can win on the merits (which
requires a showing significantly better than negligible but not necessarily more
likely than not) and that it is more likely than not to suffer irreparable harm in the
absence of preliminary relief. If these gateway factors are met, a court then
considers the remaining two factors and determines in its sound discretion if all
four factors, taken together, balance in favor of granting the requested preliminary
relief. In assessing these factors, Judge Easterbrook’s observation bears
repeating: “How strong a claim on the merits is enough depends on the balance of
the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s
claim on the merits can be while still supporting some preliminary relief.
[Hoosier Energy Rural Elec. Corp., Inc. v. John Hancock Life Ins. Co., 582 F.3d
721, 725 (7th Cir. 2009) (Easterbrook, C.J.).]
Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017) (internal footnotes omitted).43
Also, a party’s failure to demonstrate a likelihood of success in the litigation or an irreparable
injury “must necessarily result in the denial of a preliminary injunction.”

In re Arthur

Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). Nonetheless, and as indicated
above, “there may be circumstances when the plaintiff satisfies the first two factors, but the

43

Both the defendants and PYC cite to Nutrasweet Co. v. Vit-Mar Enterprises, Inc., 176 F.3d 151 (3d Cir. 1999) for
the proposition that “the [movant’s] failure to establish any element in its favor renders a preliminary injunction
inappropriate.” See Intervenor-Def. Pa. Youth Cong. Found.’s Proposed Findings of Fact and Conclusions of Law
(“PYC’s Findings and Conclusions”) at p. 18, ¶ 96 (quoting Nutrasweet), Doc. No. 58; Defendants’ Second Set of
Proposed Findings of Fact and Conclusions of Law Regarding Pls.’ Mot. for Prelim. Inj. (“Defs.’ Findings and
Conclusions”) at p. 24 (quoting Nutrasweet), Doc. No. 59. In Reilly, the Third Circuit noted that starting in
Opticians Ass’n of America v. Independent Opticians of America, 920 F.2d 187, 191-92 (3d Cir. 1990), various
Third Circuit panels “held that a district court ‘must consider four factors’ and that ‘[o]nly if the movant produces
evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction
issue.’” 858 F.3d at 177 (quoting Opticians Ass’n of Am., 920 F.2d at 191-92). The court pointed out that the
Opticians Ass’n of America line of cases conflicted with the other decisions, going back to a decision in Delaware
River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974), which called
for a balancing of the four factors. Id. The court then explained that “the conflicting line of cases and
corresponding confusion in our Court appear to be the product of compounded subtle misinterpretations of our
longstanding jurisprudence.” Id.
The court went on to explain that Third Circuit panels are required to follow prior precedential decisions
unless the court en banc does not do so, and that no en banc court overruled Transamerican Trailer. Id. Thus, all
subsequent Third Circuit panels should have followed the balancing of the four factors approach enunciated in
Transamerican Trailer. Id. In addition, the court explained that the Supreme Court’s decision in Winter “did not
overrule our balancing-of-the-factors standard” and, instead, supported this standard upon a more in depth review of
the Court’s reasoning in that case. Id.
For purposes of this opinion, the court follows the standard set forth in Reilly as it appears to be the proper
recitation of the standard for parties to satisfy before the court may issue preliminary injunctive relief.

84

balance of the equities and/or the public interest militate against granting a preliminary
injunction.” Fres-co Sys. USA, Inc. v. Hawkins, No. 16-3591, -- F. App’x --, 2017 WL 2376568,
at *3 (3d Cir. June 1, 2017) (citations omitted).
Generally, “[a] primary purpose of a preliminary injunction is maintenance of the status
quo until a decision on the merits of a case is rendered.” Acierno v. New Castle Cty., 40 F.3d
645, 647 (3d Cir. 1994); see also University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)
(“The purpose of a preliminary injunction is merely to preserve the relative positions of the
parties until a trial on the merits can be held.”).

Thus, “[a] party seeking a mandatory

preliminary injunction that will alter the status quo bears a particularly heavy burden in
demonstrating its necessity.” Acierno, 40 F.3d at 647 (citation omitted).
B.
1.

Likelihood of Success on the Merits

Plaintiffs’ Section 1983 Constitutional Privacy Claims
a.

Summary of the Parties’ Arguments

The plaintiffs contend that the defendants’ practice of allowing transgender students to
use the locker rooms and bathrooms corresponding to their gender identities violates the
plaintiffs’ “fundamental right to bodily privacy from persons of the opposite sex” under the
Fourteenth Amendment to the United States Constitution. See Memorandum of Law in Supp. of
Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mem.”) at 10, 11 & n.6, Doc. No. 16-1. The practice violates
their right to bodily privacy because it departs from “our universal tradition,” which separates
privacy facilities such as locker rooms and rest rooms based on biological sex rather than on an
individual’s “subjective perception” of their own gender. 44 Id. at 10. They believe that “[t]he

44

The plaintiffs contend that “[a] policy that separates our privacy facilities on the basis of gender identity rather
than sex also suffers from absolute unworkability.” Pls.’ Mem. at 10 n.5; see also Reply Br. in Supp. of Pls.’ Mot.
for Prelim. Inj. (“Pls.’ Reply”) at 4; Plaintiffs’ Suppl. Findings of Fact and Conclusions of Law (“Pls.’ Findings and
Conclusions”) at ECF p. 27, ¶ 146. In support of this assertion, the plaintiffs refer to the spectrum of possible

85

Constitution prohibits Defendants from placing students in situations where their bodies or
private, intimate activities may be exposed to the opposite sex or where the students will use
privacy facilities with someone of the opposite sex.” Id. at 13.
With regard to their assertion that they have identified a fundamental right at issue in this
case, the plaintiffs indicate that the right to bodily privacy from members of the opposite sex is
“‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered
liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’” Id. (quoting
Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). 45 They note that various Pennsylvania

gender identities, such as genderqueer or third gender, that fall outside of individuals identifying with the binary
constructs of “male” and “female.” Id. While it appears to be undeniable that sex-segregated privacy facilities such
as restrooms and bathrooms appear to be incompatible with being able to accommodate the entire spectrum of
possible gender identities (particularly for an individual that does not identify with either sex/gender), it is not as if
dividing privacy facilities based on biological sex covers the entire spectrum of biological sex assignments. See,
e.g., Jennifer Rellis, “Please Write ‘E’ in This Box” Toward Self-Identification and Recognition of a Third Gender:
Approaches in the United States and India, 14 Mich. J. Gender & L. 223, 223 (2008) (explaining that “[o]ne to four
percent of the world population is intersexed, not fully male or female.” (citation omitted)). Thus, one could argue
that separating privacy facilities based on biological sex (which the plaintiffs define by a person’s internal and
external reproductive organs) is “absolute[ly] unworkabl[e]” as well. As such, certain groups of individuals could
be excluded under either method of designating the use of restrooms, locker rooms, and other privacy facilities. For
those individuals “for whom there is no safe, accessible restroom in public places,” some commentators have
suggested replacing sex-segregated public restrooms with “all-gender, multi-user facilities that protect the privacy
and safety concerns of all patrons, while discriminating against no one.” Terry S. Kogan, Public Restrooms and the
Distorting of Transgender Identity, 95 N.C. L. Rev. 1205, 1205 (2017); see also Alanna M. Jereb, The Bathroom
Right for Transgender Students and How the Entire LGBT Community Can Align to Guarantee This, 7 Wake Forest
J.L. & Pol'y 585, 606 (2017) (discussing two possible solutions to transgender students’ bathroom issue, including
the provision of unisex bathrooms)
Regardless, the court is not faced with having to determine the wisdom of the School District’s practice or
whether it is unworkable in this case. The facts of this case do not involve any of the potential scenarios
contemplated by the plaintiffs as there is no evidence that any student at BASH who has received permission to use
a facility corresponding to the student’s gender identity falls into these other gender identities and, as the defendants
have indicated that they do not necessarily have a plan in place for dealing with requests from students other than
students identifying with the binary gender/sexes of male and female, it is unclear how the “workability” of the
School District’s practice as to students outside of the binary genders/sexes of male and female affect the plaintiffs
in this case.
45
Interestingly, while the plaintiffs only mention it by name once in their supporting memorandum of law and fail to
mention it at all in their supplemental proposed findings of fact and conclusions of law, it is apparent that the
plaintiffs are asserting their privacy right under substantive due process principles. The court reaches this
conclusion based upon (1) the plaintiffs’ assertion that the defendants violated a “fundamental right,” (2) the
plaintiffs’ citation to Glucksberg, which discussed, inter alia, how the Supreme Court identified “fundamental
rights” as part of the substantive due process analysis, and (3) the plaintiffs’ reference to the need to apply strict
scrutiny to the defendants’ practice and the plaintiffs’ reference to the standard for substantive due process set forth
in Reno v. Flores, 507 U.S. 292, 301-02 (1993), see Pls.’ Mem. at 23.

86

laws, including the Pennsylvania’s Public School Code of 1949 “require[s] the use of separate
facilities on the basis of sex in a myriad of contexts.” Id. at 14 & n.7 (citing various sections of
the Pennsylvania Code). They also point out that even nationally, various courts recognize that
sex-segregated facilities historically accommodate privacy needs from the opposite sex. Id. at
14-15 (citing cases). Further, when it comes to students, the plaintiffs argue that the government
cannot force minors to “endure the risk of intimate exposure to the opposite sex.” Id. at 16.
Moreover, they point out that the law protects against conduct involving violations of privacy
from the opposite sex and exposure to another person’s unclothed body, and this includes, inter
alia, (1) civil lawsuits against Peeping Toms, (2) criminalizing (a) open lewdness, (b) viewing or
filming another person in a state of undress when that person had a reasonable expectation of
privacy, (c) indecent exposure, and (d) minors “sexting,” i.e. when a minor sends a naked picture
of himself or herself via electronic means. Id. (citing cases and statutes).
Regarding the defendants’ violation(s) of the plaintiffs’ fundamental rights, the plaintiffs
contend that the defendants’ practice of allowing transgender students (again, classified by the
plaintiffs as “persons of the opposite sex”) to use the bathrooms and locker rooms corresponding
to their gender identity violates their privacy. Id. at 18. They assert that the defendants’ practice
violates their privacy even if intimate areas of their bodies are not exposed as even their (in
particular, the girls’) “modesty” is protected from intrusion. Id. at 18-20 (citing Livingwell
(North) Inc. v. Pennsylvania Human Relations Comm’n, 606 A.2d 1287 (Pa. Commw. 1992)).
Also, while the Third Circuit has focused on the Fourteenth Amendment when discussing the right to
privacy outside of the search and seizure context, the court has not always explicitly correlated that right with the
Fourteenth Amendment right to substantive due process. Nonetheless, it appears that to the extent that the Third
Circuit has recognized this right, the court has characterized it as the “Fourteenth Amendment’s substantive due
process right to privacy.” See Doe v. Delie, 257 F.3d 309, 323 (3d Cir. 2001) (“[W]e hold today that prison inmates
retain a Fourteenth Amendment substantive due process right to privacy in their medical information.”); see also
Nunez v. Pachman, 578 F.3d 228, 231 n.7 (3d Cir. 2009) (“The Supreme Court has recognized that notions of
substantive due process contained within the Fourteenth Amendment safeguard individuals from unwarranted
governmental intrusions into their personal lives. This right to privacy actually encompasses two distinct interests[,
including] . . . the individual interest in avoiding disclosure of personal matters[.]”).

87

Furthermore, the plaintiffs assert that even though they are the only plaintiffs in this lawsuit, all
BASH students’ “rights are violated by this policy that tramples students’ dignity interest, strips
away modesty and privacy, and leaves them humiliated and vulnerable in privacy facilities.” Id.
at 23.
The plaintiffs further assert that self-identity with the opposite sex does not alter the
analysis and a number of courts have rejected claims that allowing transgender individuals into
the bathroom or locker room of the gender in which the individual identifies violates the other
students’ privacy to use the restroom. Id. at 23-25 (citing cases). Finally, the plaintiffs argue
that the defendants’ practice does not pass strict scrutiny insofar as there is no compelling
interest which could “justif[y] obligating students to accept members of the opposite sex into
locker rooms, showers, and restrooms that are properly reserved to the use of one sex under
federal and state law.” Id. at 25-26.

In fact, the defendants’ interest is to maintain sex-

segregated spaces because Pennsylvania law, including the School Code, requires as such. Id. at
26. Even if there was a compelling interest, the defendants’ practice is not the least restrictive
means to accomplish that interest because the defendants could permit those uncomfortable with
using a multi-user facility with others of the same sex to use a single-user facility. Id. at 26-27.
In contending that the plaintiffs have failed to establish a likelihood of success on the
merits on their section 1983 invasion of privacy claim, the defendants do not devote a significant
portion of their submissions to attacking the plaintiffs’ assertion of the right allegedly infringed
in this case. To the extent that there are objections to the characterization of the right at issue,
the School District asserts that
[n]o case recognizes a right to privacy such as the one Plaintiffs assert here that
insulates a person from ever coming into any contact at all with someone who is
different than they are, or who they fear will act in a way that causes them to be
embarrassed or uncomfortable, when there are alternative means – in this case,
88

single-user bathrooms – for both individuals to protect themselves from such
contact, embarrassment or discomfort.
Defendants’ Mem. in Opp. to the Mot. for Prelim. Inj. (“Defs.’ Mem.”) at 8-9, Doc. No. 34. In
addition, the defendants argue that the plaintiffs’ claims do not fit into the categories of
fundamental rights previously recognized by the courts, such as marriage, family, procreation,
and the right to bodily integrity, and are not sufficiently fundamental to qualify as a new
fundamental right. Id. at 9.
The defendants also assert that the plaintiffs cannot show a likelihood of success on the
merits of their section 1983 claim because there is no government compulsion in this case. Id. at
8; see also Defs.’ Findings and Conclusions at 27-28, ¶ 7 (“Plaintiffs . . . are not required by a
state actor – in this case the School District – to use restrooms or locker rooms with any
transgender student.”). The defendants note that no students – transgender or cisgender – are
required to use a bathroom or locker room as there are (1) individual toilet stalls (with doors and
locks) and individual shower stalls (with curtains) for use in the locker rooms, (2) individual
toilet stalls (with doors and locks) in the multi-user bathrooms, (3) single-user facilities (at least
five that students can use generally and three more than are available depending on the student’s
business at the time) available for students who do not want to use the multi-user bathrooms and
the toilet stalls therein or the common area of the locker room and the individual toilet and
shower stalls therein, and (4) team rooms that Dr. Cooper has indicated that the School District is
willing to allow students to use. Id.
For their final arguments relating to the plaintiffs’ constitutional invasion of privacy
claim, the defendants generally assert that the plaintiffs’ privacy rights must be balanced with the
School District’s need “to preserve the discretion of schools to craft individualized approaches to
difficult issues that are appropriate for their respective communities.” Id. at 30-31, ¶ 10. The
89

defendants seek to have the court not constrain them from fulfilling their duties to serving as “a
principal instrument in awakening the child to cultural values,” which is deeply rooted in this
nation’s history and tradition. Id. (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
287 (1988) (internal quotation marks and citation omitted)). The defendants also contend that
public policy supports their practice as “[c]ontemporary notions of liberty and justice,” which
support transgender students using restrooms and locker rooms aligned with their gender
identities, “are inconsistent with the exceedingly broad right to privacy asserted by Plaintiffs.”
Id. at 33, ¶ 15.
As for PYC, it contends that the plaintiffs are unlikely to succeed on their constitutional
invasion of privacy claims because the School District has not actually invaded their privacy
insofar as the School District does not compel them to use the common restrooms and locker
rooms. Intervenor-Def. Pa. Youth Congress Found.’s Resp. in Opp. to Pls.’ Mot. for Prelim. Inj.
(“PYC’s Mem.”) at 4, Doc. No. 33. In addition, PYC notes that (1) the “mere presence” of
transgender students in the opposite biological sex’s facilities does not constitute an invasion of
any student’s constitutional right to privacy, and (2) the plaintiffs cite to no case supporting the
proposition that there is an invasion of their privacy through their viewing other students in a
state of undress. Id. at 5. Further, even if the defendants’ practice intruded on the plaintiffs’
(and other BASH students’) constitutional right to privacy, PYC contends that the School
District has a legitimate interest in permitting transgender students to use facilities matching their
gender identity to ensure that they can “fully participate in school life without being singled out
for unequal treatment and stigma.” Id. at 8-9.

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b.

Analysis

In addressing whether the plaintiffs are likely to succeed on the merits of their
constitutional invasion of privacy claim, the court must first address whether the plaintiffs are
asserting a fundamental right as they claim and the precise contours of that right. To analyze
whether the plaintiffs are asserting such a fundamental right and the contours of the right as
defined by the facts of this case, the court is guided by the Third Circuit’s decision in Doe v.
Luzerne County, 660 F.3d 169 (2011). 46 In Doe, the Third Circuit described the law applicable
to claims about purported violations of a constitutional right to privacy under the Fourteenth
Amendment as follows:
“The United States Constitution does not mention an explicit right to
privacy and the United States Supreme Court has never proclaimed that such a
generalized right exists.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d
Cir. 2005). But see Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir.
2000) (stating that the Supreme Court “acknowledged the individual’s
constitutional right to privacy” in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct.
46

In relying on Doe, the court recognizes that the facts underlying the purported constitutional violation in that case
are not remotely analogous to the facts in this case. Doe involved a female police officer plaintiff who was
subjected to a flea infestation after entering a disarrayed and unsanitary residence while serving a bench warrant.
660 F.3d at 171. During the flea decontamination process, Doe went to a hospital decontamination area and
showered using chemical shampoo. Id. at 172. After completing her shower, Doe found that the decontamination
area lacked towels and the only item that she could use to cover her naked body was “a roll of thin paper of the type
that typically covers a doctor’s examination table.” Id. Doe claimed that this paper was semi-transparent or at least
became semi-transparent when she covered her wet body with it. Id.
At the request of another female police officer who was assisting her with the decontamination, Doe
covered her private areas with the paper and this other officer entered the room, closed the door behind her, and
began inspecting Doe for any remaining fleas. Id. at 173. While Doe’s back was facing the door to the room, and
with Doe having “most of her back, shoulders and legs . . . completely exposed . . . [with] the thin paper, which
could have been semi-transparent, . . . wrapped around her buttocks and breasts[,]” two male police officers opened
the door approximately a foot and observed Doe. Id. One of the male officers had a video camera and was
recording Doe. Id. After a comment by one of the male officers, Doe turned her head toward the sound and noticed
the male officers. Id. Without turning around, Doe yelled at the male officers to leave the room. Id. The parties
disputed how much of Doe’s body the two male officers observed in the decontamination area. Id.
To make matters worse, the male officer who was filming Doe – he had also filmed portions of Doe’s
entire ordeal from the reporting of the contamination at the residence to Doe entering the hospital, purportedly for
“training purposes” – uploaded pictures and video of Doe (and another officer that had also entered the residence
with Doe) onto his work computer and apparently stored some of the pictures and video on a public computer folder
accessible to anyone on the county network. Id. at 173-74. This same male officer shared photos and videos of the
incident with other members of the police department, although it was unknown who saw them and exactly what
they saw. Id. Nonetheless, apparently the files saved on the public computer contained a photo of Doe’s bare back
and a photo of Doe’s bare back and bare shoulders, with both photos showing “the outline of Doe’s buttocks—
covered only by thin, wet hospital paper.” Id. at 174.

91

1678, 14 L.Ed.2d 510 (1965)). The Supreme Court, however, has found certain
constitutional “zones of privacy.” C.N., 430 F.3d at 178 (citing Roe v. Wade, 410
U.S. 113, 152–53, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). From these zones of
privacy, we have articulated two types of privacy interests rooted in the
Fourteenth Amendment. Nunez v. Pachman, 578 F.3d 228, 231 n.7 (3d Cir.
2009); see also Malleus v. George, 641 F.3d 560, 564 (3d Cir. 2011); C.N., 430
F.3d at 178. The first privacy interest is the “individual interest in avoiding
disclosure of personal matters,” and the second is the “interest in independence in
making certain kinds of important decisions.” C.N., 430 F.3d at 178; see also
Malleus, 641 F.3d at 564; Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000).
The first privacy interest is at issue in this matter.
“‘The right not to have intimate facts concerning one’s life disclosed
without one’s consent’ is ‘a venerable [right] whose constitutional significance we
have recognized in the past.’” C.N., 430 F.3d at 179 (quoting Bartnicki v. Vopper,
200 F.3d 109, 122 (3d Cir. 1999)). Justice Brandeis, in dissent, famously referred
to this as “the right to be let alone.” Olmstead v. United States, 277 U.S. 438, 478,
48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
The touchstone of constitutional privacy protection is whether the
information at issue is “within an individual’s reasonable expectations of
confidentiality.” Malleus, 641 F.3d at 564; see also C.N., 430 F.3d at 179;
Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 112 (3d
Cir.1987) (“Fraternal Order of Police”). The more intimate or personal the
information, the more reasonable the expectation is that it will remain
confidential. Fraternal Order of Police, 812 F.2d at 112–13 (citing United States
v. Westinghouse Electric Corp., 638 F.2d 570, 577 & n. 5 (3d Cir. 1980)); see
also Malleus, 641 F.3d at 564; C.N., 430 F.3d at 179. Indeed, the “federal
constitution ... protects against public disclosure [of] only highly personal matters
representing the most intimate aspects of human affairs,” thereby shielding from
public scrutiny “only that information which involves deeply rooted notions of
fundamental personal interests derived from the Constitution.” Nunez, 578 F.3d at
232 (emphasis omitted) (citation and quotation marks omitted).
We have found the following types of information to be protected: a
private employee’s medical information that was sought by the government;
medical, financial and behavioral information relevant to a police investigator; a
public employee’s prescription record; a minor student’s pregnancy status; sexual
orientation; and an inmate’s HIV-positive status. Malleus, 641 F.3d at 565 (citing
cases and explaining that information encompassed by the constitutional right to
privacy may be separated into categories reflecting sexual, medical and some
financial information).
660 F.3d at 175-76.

92

The Third Circuit went on to conclude that “Doe had a reasonable expectation of privacy
while in the [d]econtamination [a]rea, particularly while in the presence of members of the
opposite sex.” Id. at 177 (alteration to original). In reaching this conclusion, the court also
pointed out that “[p]rivacy claims under the Fourteenth Amendment necessarily require factintensive and context-specific analyses, and unfortunately, bright lines generally cannot be
drawn.” Id. at 176. The court further explained that
[t]he difficulty in drawing a bright line is evident as we are not aware of any court
of appeals that has adopted either a requirement that certain anatomical areas of
one’s body, such as genitalia, must have been exposed for that person to maintain
a privacy claim under the Fourteenth Amendment or a rule that a nonconsensual
exposure of certain anatomical areas constitutes a per se violation.
Id. The court also “refuse[d] to draw bright lines based on anatomical parts or regions,” and
explained that courts must “analyze the specific circumstances under which the alleged violation
occurred.” Id. at 176-77.
The plaintiffs cite to Doe for the proposition that “[o]ne has a ‘constitutionally protected
privacy interest in his or her partially clothed body,’” see Pls.’ Mem. at 11 (quoting Doe, 660
F.3d at 175-76), and it appears that the other parties do not dispute that Doe recognized that
particular constitutional privacy interest. 47 If this right is the end of the inquiry, there is no
likelihood of the plaintiffs prevailing in this case.

47

While the Third Circuit in Doe indicated that “[a]lthough the issue of whether one may have a constitutionally
protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other
circuits—including the Second, Sixth and Ninth Circuits—have held that such a right exists,” the court did not
explicitly state that such a privacy right existed. Id. at 176. Nonetheless, in finding that Doe, who was partially
clothed at the time of the purported initial violation, had a reasonable expectation of privacy while she was in the
decontamination area, the court seemingly had to find that this privacy interest existed although it is apparent that
the precise contours of that right are case determinative insofar as the Third Circuit remanded the case to the district
court because of factual issues concerning the parts of Doe’s body that the male officers actually viewed. In this
regard, the Third Circuit found that there existed disputed issues of fact “as to which of Doe’s body parts were
exposed to members of the opposite sex and/or filmed while she was in the [d]econtamination [a]rea” insofar as “the
issues of whether Doe’s breasts or buttocks were exposed would affect the outcome of the suit.” Id. at 177-78.

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In this regard, the plaintiffs have yet to prove that the defendants violated their
constitutionally protected privacy interest in their partially clothed bodies. 48 Mary Smith entered
a bathroom and saw Student B while both students were fully clothed. As such, Mary Smith’s
constitutionally protected privacy interest in her partially clothed body was not violated.
Regarding Joel Doe, he was in his underwear and a t-shirt when he saw Student A. As
explained in the findings of fact, there is conflicting evidence as to whether Student A saw Joel
Doe in his underwear. There surely is not enough credible evidence that the court would
conclude that Joel Doe was likely to prove that Student A saw him in his underwear.
Finally, Jack Jones testified that he was in his underwear and initially had his back turned
to Student A. When he turned around, Student A was staring into Student A’s locker and Jack
Jones quickly moved away so Student A could not see him. While it appears that Student A was
in close proximity to Jack Jones, the court cannot infer that Student A saw Jack Jones in his
underwear and would not find that Jack Jones would be likely to succeed on such a claim if
presented to a jury based solely on the evidence currently before the court. The court also notes
that Jane Jones testified that when Jack Jones reported the incident to her, he did not tell her that
Student A saw him in his underwear. Therefore, while it is unclear whether Joel Doe and Jack
Jones are claiming that Student A saw them in their underwear because they inconsistently assert
this point (which would seem to be extremely important to their claim), to the extent they are
asserting as such, the court finds that they are not likely to succeed on any claim that involves
them being wrongfully viewed while in a state of partial undress because of the conflicting
evidence in the record. 49

48

Macy Roe testified that, as far as she knew, she never encountered a transgender student while in a locker room or
bathroom at BASH.
49
Yet another example of this inconsistency is illustrated by the plaintiffs’ statement in their reply brief that the
defendants and PYC “conveniently ignore the fact that both Joel Doe and Jack Jones were already caught in the

94

Nonetheless, it is evident by the plaintiffs’ description of the fundamental right in this
case – the fundamental right to bodily privacy from members of the opposite sex – that the
plaintiffs are seeking to include additional conduct as violating their right to privacy. It appears
that these additional forms of conduct include (1) males being able to hear females when females
are opening products to deal with menstruation issues or using the restrooms, (2) males being
around females with the opportunity to view females where they could discern that the girls are
having menstruation issues, (3) members of the opposite sex being in locker rooms or bathrooms
with each other regardless of anyone being in a state of undress, and (4) having to view a
transgender person in a state of undress since that student is actually a member of the opposite
sex.
Generally, a fundamental right is “deeply rooted in this Nation’s history and tradition”
and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist
if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The Supreme
Court has “‘always been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended’”
and because doing so “place[s] the matter outside the arena of public debate and legislative
action.” Id. at 720 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). Thus, “[t]he
doctrine of judicial self-restraint requires [courts] to exercise the utmost care whenever [they] are
asked to break new ground in this field.” Reno v. Flores, 507 U.S. 292, 302 (1993).
The plaintiffs have not identified and this court has not located any court that has
recognized a constitutional right of privacy as broadly defined by the plaintiffs. The only court
that seemingly has addressed a similar if not identical constitutional privacy claim was the

objectively offensive and embarrassing circumstance of standing in their underwear when a classmate of the
opposite sex was with them.” Reply Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (“Pls.’ Reply”) at 2 (emphasis added).

95

United States District Court for the Northern District of Illinois in Students and Parents for
Privacy v. United States Dep’t of Education, No. 16-cv-4945, 2016 WL 6134121 (Oct. 18, 2016)
(hereinafter referred to as “Students”). In Students, United States Magistrate Judge Jeffrey T.
Gilbert issued a report and recommendation which recommended denying the plaintiffs’ motion
for a preliminary injunction. The plaintiffs in that case had sued, among others, the Department
of Education and school directors of a school district. 2016 WL 6134121 at *1. In the action,
the plaintiffs sought a preliminary injunction that would have ceased the school directors’
existing policies that allowed transgender students to use locker rooms and restrooms on the
basis of their gender identity and required the school district to segregate restrooms and locker
rooms on the basis of the students’ biological sex. Id. Thus, on its face, the plaintiffs in Students
were seeking the same relief as the plaintiffs in this case. 50
One of the plaintiffs’ claims in Students was that the school directors’ policy (there were
written policies with respect to bathrooms and locker rooms) violated their constitutional rights
“‘to privacy in one’s fully or partially unclothed body’” and “‘to be free from State-compelled
risk of intimate exposure to oneself to the opposite sex.’” Id. at *22 (citation omitted). The
court determined that the plaintiffs had too broadly defined the right at issue in the case because
it was not tied to the facts of the case and there is no generalized constitutional right to privacy
“in the substantive due process context.” Id. at *21-22 (citations omitted). The court then
rephrased the right at issue and the question for the court to resolve as: “do high school students
have a constitutional right not to share restrooms or locker rooms with transgender students
whose sex assigned at birth is different than theirs?” Id. at *23.

50

The plaintiffs in Students were also represented by multiple counsel, including attorneys from Alliance Defending
Freedom, which is also one of the legal groups representing the plaintiffs in the instant case.

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The court concluded that the plaintiff high school students did not have a constitutional
right not to share restrooms or locker rooms with transgender students whose sex assigned at
birth is different than theirs. Id. In reaching this conclusion, Magistrate Judge Gilbert explained
that the court did not have to limit the definition of “sex” to an individual’s sex at birth as the
Seventh Circuit Court of Appeals had in the Title VII context in Ulane v. Eastern Airlines, Inc.,
742 F.2d 1081, 1084 (1984), and could address gender identity without being limited to having
to frame the issue by the students’ sex assigned at birth. Id. The court also pointed out that the
school directors’ policies did not require the plaintiffs to use locker rooms or bathrooms with
transgender students because (1) they could use the private stalls and protections in the
bathrooms and locker rooms and, (2) if those protections did not provide sufficient comfort for a
particular student, the uncomfortable student could use an alternative facility to ensure the
student’s privacy needs. Id. This lack of compulsion by the school district distinguished the
school directors’ policies from the cases referenced by the plaintiffs. 51 Id.
The court also pointed out that “[i]n assessing the nature and scope of Plaintiffs’
constitutional rights, and whether those rights have been infringed, the Court also must consider
the need to preserve the discretion of schools to craft individualized approaches to difficult issues
that are appropriate for their respective communities.”

Id. at *24.

In addition, the court

indicated that students have less constitutional privacy rights in public schools than they would
elsewhere. Id. at *25.
The court further explained that “[c]ontemporary notions of liberty and justice are
inconsistent with the existence of the right to privacy asserted by Plaintiffs and properly framed
by this Court” insofar as transgender students do not “live [their] lives in conformance with
[their] sex assigned at birth.” Id. The intervenors, three transgender students who attended
51

The plaintiffs refer to many of the same cases here.

97

school in the school district, provided declarations showing how they lived their lives in
accordance with their gender identity and were consistently recognized as such by the
community. Id.
As a final reason for concluding that the high school students lacked the constitutional
right at issue, the court pointed out that the school directors’ policy did not and would not (as
feared by the plaintiffs) allow all cisgender students to go into the locker room of the opposite
sex; instead, it allows students to use the facilities consistent with their gender identity. Id. at
*26. In addition, the school district had an agreement with one of the students, a transgender
female, to use the girls’ locker rooms. Id. The court further noted that speculation as to
cisgender students possibly seeking to gain entrance to the opposing sex’s bathroom and locker
room was not a reason to invalidate the school directors’ policy. Id.
The court went on to conclude that even if the court accepted the broad constitutional
privacy rights asserted by the plaintiffs, the school directors did not substantially or directly
infringe upon the plaintiffs’ rights because, inter alia, (1) none of the cases cited by the plaintiffs
were applicable or “st[ood] for the proposition that the risk of bodily exposure to a transgender
student in a high school restroom or locker room, particularly given the privacy protections put
in place by [the school directors] infringes upon a fundamental right and thereby violates the
Constitution[;]” (2) the plaintiffs’ cited cases involving the Fourth Amendment were inapplicable
because the Fourth Amendment requires the government to show reasonableness before invading
a person’s privacy via a search and seizure and “substantive due process does not impose a
similar restriction[;]” (3) the case did not involve the “extreme invasions of privacy that the
courts confronted in the cases cited by Plaintiffs;” and (4) the case did not involve the “type of
forced invasion of privacy that animated the cases cited by Plaintiffs.” Id. at *27-29.

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This court recognizes that Students is not binding authority and, as of this moment, is a
report and recommendation that has not been adopted by the referring District Court Judge. 52
Nevertheless, portions of the court’s opinion are persuasive in addressing the issues presented in
this case despite various subtle differences in the factual record.
In the first instance, as in Students, the plaintiffs here have argued for the recognition of a
very broad constitutional privacy right that has never been recognized by another court even
though courts have recognized that sex-segregated bathrooms provide for privacy protection
from the opposite sex. In fact, if such a broad right was to exist, the Third Circuit in Doe would
not have had to limit the right to one’s partially clothed body, because the plaintiff would have
had a general right to bodily privacy from the opposite sex. There would have been no need to
remand the case to the district court to resolve the issue of whether the defendants actually
violated the plaintiff’s right to privacy (as the court did not conclude that a violation occurred)
because the male officers would have violated her right to privacy merely by entering the
decontamination room while she was in there once the court determined that Doe had a
reasonable expectation of privacy in the room. The plaintiffs’ proposed right is so expansive that
it would be a constitutional violation for a female to be in the presence of a male inside of a
locker room or bathroom and vice versa, and it would be a violation of one’s constitutional right
of privacy to view a member of the opposite sex in a state of undress even if the viewing party
was fully clothed at the time. There is no support for such a broad right of privacy that has yet to
be recognized.

52

Students also involved claims against the Department of Education based on the guidance provided in the May
2016 Dear Colleague Letter. Counsel represented to this court during oral argument that the rescission of that
guidance by the current administration has caused delays in the disposition of objections to the report and
recommendation. In addition, the plaintiffs have pointed out that the Department of Education, Office for Civil
Rights withdrew from the matter and terminated its enforcement efforts. See Pls.’ Reply at 3, n.4.

99

The plaintiffs have also not demonstrated that such an expansive right of privacy is
“deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered
liberty.” Glucksberg, 521 U.S. at 721. Even if this right was limited to a right to bodily privacy
from the opposite sex in bathrooms and locker rooms, or even if the right was limited to a
student’s right of bodily privacy from the opposite sex in bathrooms and locker rooms at schools,
these rights are not such that “neither liberty nor justice would exist if they were sacrificed.” Id.
Despite these possible limitations to the broad right asserted by the plaintiffs, these are not the
contours of the underlying right in this case because this case does not merely involve members
of the opposite sex. See Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002) (indicating that the
first step of any substantive due process analysis is to “define the ‘exact contours of the
underlying right said to have been violated’” (quoting County of Sacramento v. Lewis, 523 U.S.
833, 842 n.5 (1998)). Instead, although the plaintiffs refuse to refer to them as such, this case
involves transgender students and whether it violates cisgender students’ right to privacy for
transgender students to be in the locker room or bathroom that does not correspond to the
transgender student’s biological sex at birth.
As in Students, the School District’s practice here does not allow cisgender boys to go
into the girls’ bathrooms and locker rooms or allow cisgender girls to go into the boys’
bathrooms and locker rooms. 53 Instead, the School District permits students who indicate that
they identify with a gender different than the sex assigned to them at birth to use the bathrooms
and locker rooms which correspond to their gender identity. Despite the plaintiffs’ concerns
53

The parties entered into a stipulation in which two male students at BASH reported that two purportedly female
students entered the boys’ bathroom (it was unclear if there was more than one instance). Even though two female
students entered the boys’ bathroom, these acts do not mean that the School District’s practice regarding use of the
restrooms and requiring permission before gaining access to a restroom corresponding to the student’s gender
identity extends to all cisgender students. As Dr. Cooper testified, there were five to ten reported incidents with
students improperly entering into bathrooms of the opposite sex before the new practice started so it is not as if this
new practice opened the door to numerous students wrongfully going into restrooms or locker rooms.

100

about gender fluidity, gender nonconformity, or other gender identity issues that fall along the
spectrum described by Dr. Leibowitz and referenced in the WPATH Standards of Care, there is
no evidence in the record that any of the students that have requested and received permission
from the School District have done anything other than live in a manner consistent with their
gender identity. In this regard, Dr. Cooper indicated that all of the transgender students that have
received permission to use the bathrooms and locker rooms corresponding to their gender
identity have requested to have the School District refer to them as an initial or another name
rather than their given name, and have asked to be referred to by the pronouns corresponding to
their gender identity instead of their sex assigned at birth. There is also no evidence that these
students do not also outwardly portray themselves in accordance with their gender identity or are
not known by the community in the same regard. Furthermore, once the transgender students
have received permission to go into the locker rooms and bathrooms consistent with their gender
identity, the School District has prohibited them from going into the bathroom corresponding
with their birth sex.
This court agrees with Students that high school students such as the plaintiffs here (or at
least the plaintiffs when they commenced this litigation, as Macy Roe has already graduated
from BASH) have no constitutional right not to share restrooms and locker rooms with
transgender students whose sex assigned at birth is different from theirs. Also, as the defendants
note, there is no requirement at BASH that the plaintiffs (or any student for that matter) get
changed in the locker room for gym class (although they do have to change depending on the
gym activity and if they desire to try to obtain as high of a grade as possible) or use the multiuser restrooms. Thus, no cisgender student is compelled to use a restroom with a transgender
student. If cisgender students decide to use the locker rooms, there are privacy stalls in the

101

shower area with curtains and toilet stalls with doors and locks for students use if the student
desires to not be viewed by a transgender student while changing. If cisgender students are
uncomfortable even viewing a transgender student while they are changing for gym, the
cisgender students could use the team room in the locker room that does not require them to go
through the common area of the locker room, or the cisgender students could use a single-user
facility to change. Similarly, any cisgender student concerned with running into a transgender
student in a bathroom and who does not think that urinal dividers or toilet stalls provide the
requisite protection of their privacy can access one of the single-user facilities. At bottom, no
student at BASH is compelled to use a privacy facility in which he or she feels uncomfortable.
When discussing the need for students to be protected from exposure to the members of
the opposite sex, the plaintiffs cite to numerous cases that simply have no application here. For
example, the plaintiffs cite to Fortner v. Thomas, 983 F. 2d 1024, 1030 (11th Cir. 1993) for the
proposition that “[m]ost people have ‘a special sense of privacy in their genitals, and involuntary
exposure of them in the presence of other people of the other sex may be especially demeaning
and humiliating.” Pls.’ Findings and Conclusions at ECF p. 34, ¶ 11. Fortner involves male
inmates complaining about female correctional officers being assigned to locations that allow
them to view inmates in the showers and on the toilet. 983 F.2d at 1026. Although unclear, the
reference to the term “involuntary” appears to indicate that the inmates lacked the ability to
prevent the female guards from seeing them naked. As already indicated, there is no requirement
at BASH that would compel a student to involuntarily expose himself or herself to another
student. The facilities there can address all students’ privacy needs.
Another example of citing to seemingly inapplicable cases is the plaintiffs’ references to
cases involving strip searches of students by members of the opposite sex, which is significantly

102

more egregious than merely being in the presence of a transgender student. See Pls.’ Findings
and Conclusions at 35 & ¶¶ 12-14, 38 & ¶ 27 (citing Cornfield v. Consolidated High Sch. Dist.
No. 230, 991 F.2d 1316 (7th Cir. 1993) (involving female teacher aide’s strip search of male
student); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009) (involving strip search
of 13-year-old female student’s bra and underpants); Beard v. Whitmore Lake Sch. Dist., 402
F.3d 598 (6th Cir. 2005) (involving strip searches of high school students)). 54 A further example
is cases involving bona fide occupational qualifications that would preclude individuals from one
sex from being in an area that would violate the opposite sex’s privacy interests. Although these
cases reference having sex-segregated areas to accommodate privacy needs, none of the cases
address whether the privacy interest mentioned is a constitutional right of privacy. See, e.g.,
Pls.’ Findings and Conclusions at ECF p. 38, ¶ 26 (citing St. John’s Home for Children v. West
Va. Human Rights Comm’n, 375 S.E.2d 769, 771 (Vir. 1998) (referencing bona fide occupational
qualification for female child care worker in a “school for disturbed adolescent[]” boys)).
Two other points bear mentioning. First, even if the right articulated by the plaintiff
could be extended to support the existence of a constitutional right of bodily privacy from
members of the opposite sex, the plaintiffs have not identified any basis for that right extending
to a prohibition of seeing a member of the opposite sex in a state of undress such as Joel Doe and
Jack Jones experienced with Student A in October and November 2016. To recognize, for
example, that a male’s constitutional privacy rights are violated by merely viewing a female in a

54

The plaintiffs cite to Redding for two propositions: (1) that “adolescent vulnerability intensifies the . . .
intrusiveness of the exposure,” and (2) “[f]orcing minors to risk exposing their bodies to the opposite sex is an
‘embarrassing, frightening, and humiliating’ experience.” Pls.’ Mem. at 13 (quoting Redding, 557 U.S. at 375); Pls.’
Findings and Conclusions at ¶¶ 13-14 (same). As for this second proposition, the plaintiffs’ have mischaracterized
Redding because the “opposite sex” was not involved in the strip search. Instead, the facts show that the school
employees conducting the search of the 13-year-old girl student were an administrative assistant named “Helen
Romero” and the school nurse named “Peggy Schwallier.” While one’s name is not automatically determinative of
one’s gender or sex (as the instant case makes clear), it appears that female school employees conducted the search
of the female student.

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locker room or even by seeing a female in a state of undress in a locker room, would extend
constitutional privacy rights beyond acceptable bounds. Second, the plaintiffs reference a right
to privacy by cisgender girls to not have transgender girls hear them when they are in the
restroom (particularly when they are tending to menstruation issues). The plaintiffs cite to Borse
v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992) in support of the proposition that an
individual’s use of their senses (which would presumably include hearing) to invade the
seclusion of another is a privacy violation. Pls.’ Findings and Conclusions at 34, ¶ 11. The
Borse case discussed this type of intrusion with respect to a common law intrusion upon
seclusion tort claim and did not discuss it as if it was a constitutional invasion of privacy claim.
Further, to the extent that it would even reach the status of a fundamental right of privacy, there
is no indication that this would be extended to being heard by a member of the opposite sex
when the student is in an area such as a locker room or multi-user bathroom where there is a
limited amount of auditory privacy from anyone.
Since this matter does not involve any forced or involuntary exposure of a student’s body
to or by a transgender person, and the School District has instituted numerous privacy
protections and available alternatives for uncomfortable students or to protect against the
involuntary exposure of a student’s partially clothed or unclothed body, the plaintiffs have not
shown that the defendants infringed upon their constitutional privacy rights. As a final issue,
PYC and the plaintiffs disagree over the level of scrutiny to apply to the defendants’ practice
regarding transgender students’ use of the bathrooms and locker rooms at BASH. 55

The

plaintiffs argue that the practice is subject to strict scrutiny insofar as it infringes upon a
fundamental constitutional right. Pls.’ Mem. at 25-26. PYC contends that strict scrutiny does
not apply because the Third Circuit in Doe indicated that “‘[a] person’s right to avoid disclosure
55

As far as the court can tell, the defendants do not address this issue.

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of personal matters is not absolute,’ and ‘[d]isclosure may be required if the government interest
in disclosure outweighs the individual’s privacy interest.’” PYC’s Mem. at 8 n.4 (quoting Doe v.
Luzerne Cty., 660 F.3d 169, 178 (3d Cir. 2011)).
As already discussed, the Third Circuit in Doe was analyzing a matter in which the
plaintiff was raising a claim that her constitutional right to privacy was violated when the two
male police officers entered the decontamination room and saw her in a state of undress. But,
the case also involved the one male officer filming her, showing pictures and videos of her to
other employees, and saving photos and videos to the office computer server. When the Third
Circuit discussed the seven-factor “flexible balancing test” used to see if the government’s
interest in disclosure outweighed the individual’s privacy interest, it appears that the Third
Circuit was examining only the alleged invasion of privacy with respect to the photos and videos
and not the invasion for the male officers viewing the plaintiff in the decontamination room.
Further, the language of the balancing test does not seem to be applicable to a constitutional right
of privacy claim like the one presented here, and applying the test to the plaintiffs’ privacy
claims here appears to be nonsensical. Instead, the balancing test appears to be concerned with
compelling disclosure of private information contained or sought to be included in records as the
test repeatedly references “record[s].” See Doe, 660 F.3d at 178 (conducting balancing test and
evaluating the “type of records at issue [which] include photographs of Doe while she is partially
dressed and an edited video of Doe that may include images of, among other things, Doe’s
exposed breasts and/or buttocks”). 56 Thus, it would not appear that this flexible balancing test is

56

The flexible balancing test requires a court to consider the following factors:
[1] the type of record requested, [2] the information it does or might contain, [3] the potential for
harm in any subsequent nonconsensual disclosure, [4] the injury from disclosure to the
relationship in which the record was generated, [5] the adequacy of safeguards to prevent
unauthorized disclosure, [6] the degree of need for access, and [7] whether there is an express

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appropriate to examine the constitutionality of the School District’s practice because the
disclosure of private information in a record is not at issue here.
As such, the court must determine, to the extent that the defendants’ practice infringes
upon the plaintiffs’ privacy rights regarding the involuntary exposure of the intimate parts of the
body (or even the possible disclosure of their partially clothed bodies), whether the infringement
is narrowly tailored to serve a compelling state interest. Reno, 507 U.S. at 302. The court finds
that it is. More specifically, the defendants have a compelling state interest not to discriminate
against transgender students. Even with the revocation of the guidance that initiated the School
District to change its practice for the 2016-17 school year, there have been recent cases
determining that School Districts have violated the Equal Protection Clause and Title IX by
precluding transgender students from using the restrooms. See, e.g., Whitaker by Whitaker v.
Kenosha Unified School Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) (Title IX) and
Evancho v. Pine-Richland School District, No. CIV. A. 2:16-1537, 2017 WL 770619 (W.D. Pa.
Feb. 27, 2017) (Equal Protection Clause). While there have been other cases deciding to the
contrary, see, e.g., Johnston v. University of Pittsburgh of Commonwealth System of Higher
Education, 97 F. Supp. 3d 657, 678 (W.D. Pa. 2015) (determining transgender university student
failed to state claim that university discriminated against him in violation of Title IX and the
Equal Protection Clause when it refused to allow him to use sex-segregated bathrooms and
statutory mandate, articulated public policy, or other recognizable public interest militating toward
access.
Doe, 660 F.3d at 178 (citations omitted). In addition, all of the cases the Third Circuit cites to concerning the
flexible balancing test involve disclosure of documents. See C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir.
2005) (involving school district administering a survey about the personal lives of students in seventh through
twelfth grade, which included, inter alia, the students’ drug and alcohol use, sexual activity, and attempts at
suicide); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 104 (3d Cir. 1987) (involving
challenge to questionnaire Philadelphia Police Department used to select applicants for its special investigations unit
because questionnaire sought information about, inter alia, applicants’ gambling habits, alcohol consumption, and
family’s financial status); United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980) (involving a
subpoena directing an employer to produce medical records of employees that had been working in a hazardous
area).

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locker rooms designated for men), this does not mean that the School District does not have a
compelling state interest in not discriminating against transgender students with regard to the use
of privacy facilities at BASH.
As for whether the practice is narrowly tailored, the School District’s practice is narrowly
tailored because the School District, inter alia, (1) does not coerce students to use the multi-user
bathrooms and locker rooms, (2) requires students seeking to use the facilities corresponding to
their gender identity to first consult with the counselor and administration and receive permission
before gaining access, (3) provides privacy protections in the nature of areas in the locker rooms
and bathrooms where students can go if those students are uncomfortable seeing or being seen by
transgender students, and (4) provides alternative single-user facilities that would provide
uncomfortable students with complete privacy and security for changing or taking care of bodily
needs. The School District has attempted to provide transgender students with the opportunity to
live their lives in a manner consistent with their gender identity, while attempting to minimize as
much as possible any discomfort felt by other students by offering various forms of privacy
protection and alternative arrangements for their use if they feel uncomfortable or need
additional privacy.
Accordingly, the court finds that the plaintiffs have failed to establish that they are likely
to succeed on the merits of their section 1983 action for invasion of privacy against the
defendants.
2.
a.

Title IX

Summary of the Parties’ Arguments

For their second claim, the plaintiffs contend that the defendants’ practice of allowing
transgender students to use the privacy facilities corresponding to their gender identity violates

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Title IX “by no longer having locker rooms, showers, and restroom [sic] separated on the basis
of sex, because allowing biological girls into boys’ facilities and biological boys into girls’
facilities creates a hostile environment on the basis of sex.” Pls.’ Mem. at 27. They argue that
Title IX, as illustrated by the February 2017 Dear Colleague Letter, pertains to discrimination by
“sex,” “a term we have long understood to refer to our biological sex and reproductive nature.”
Id. at 28. Thus, Title IX preserves distinct privacy facilities on the basis of sex and not on
theories of gender identity. Id. at 27-30.
With regard to hostile environment sexual harassment, the plaintiffs assert that simply by
allowing transgender students into the locker rooms of the opposite biological sex, the
defendants have created a hostile environment for the cisgender students. Id. at 30. They point
out that the EEOC Policy Guidance on Current Issues of Sexual Harassment shows that the
EEOC believes that “‘displays of “girlie” pictures [] and other offensive conduct can constitute a
hostile work environment even if many people deem it to be harmless or insignificant.’” Id.
(citing https://www.eeoc.gov/policy/docs/currentissues.html).

They argue that if the EEOC

would find a pin-up girl to be sufficient to establish sexual harassment, then placing a
transgender boy (who they again describe as a female) in the male locker room is as much or
more significantly offensive. Id. The plaintiffs also point out that a number of cases have found
that the intrusion upon a locker room by a member of the opposite sex constitutes sexual
harassment and a hostile environment. Id. at 31-32 (citing cases).
The plaintiffs further assert that the harassment is based on sex. The School District’s
policy causes the harassment because the School District allows students to use the privacy
facility of the opposite biological sex. 57 The plaintiffs also note that the female plaintiffs have an

57

The plaintiffs claim that Dr. Foley “seemed to understand the shocking nature of what he was asking Joel Doe and
the other students visiting him to do when he told them to make using the locker room with a biological girl wearing

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additional issue because of having to deal with menstruation issues, and “[a]ttending to these
needs with males present is humiliating.” Id. at 34. The plaintiffs also point out that the School
District’s policy puts the female plaintiffs at risk since females are more likely to be victims of
sexual assault and (1) males can now enter the female privacy facilities with lewd intentions but
under the guise that they are identifying as female, (2) the female plaintiffs cannot question the
presence of a biological male in their restrooms and locker rooms now, and (3) there is no
method of excluding males with lewd intentions “until after the damage is done.” Id. All of this
causes the plaintiffs to feel “vulnerable and violated” because of their sex. Id.
Finally, the plaintiffs argue that the harassment at issue is severe, pervasive, and
objectively offensive. Id. at 35. The plaintiffs assert that the evidence shows that they satisfy the
“subjective” first prong of a hostile environment claim because they suffer humiliation, fear,
anxiety, stress, and dignity loss with the current School District policy, and they fear being faced
with similar situations in the future. Id. As for the objective prong, the plaintiffs contend as
follows: (1) the situation is “severe” because they recognize that to use the multi-user rooms at
BASH they must be prepared to see or have members of the opposite sex enter the room; (2) the
plaintiffs’ situation is pervasive because the practice sanctions the harassing activity and it is
ongoing; (3) the School District’s practice is humiliating and threatening because they either
need to give up the right to use facilities designed for them or face the possibility of being
confronted with someone of the opposite sex in that facility; and (4) the practice undermines
their educational experience because it effectively denies them access to the multi-user facilities
a bra as natural as possible.” Pls.’ Mem. at 33. While Dr. Foley’s discussion with Joel Doe and the other male
students was somewhat puzzling, especially insofar as he stated that he was investigating whether Student A could
be in the locker room when he was already aware of the School District’s policy that would have allowed Student A
in the locker room, there is no indication that he found Student A being in the locker room to be “shocking.”
Instead, a fairer interpretation of what happened was that Dr. Foley understood that this practice was new and not
something that the boys had experienced in the past. He was encouraging them to adjust to having Student A in the
locker room with them, in part for Student A’s wellbeing. Obviously, Joel Doe did not feel comfortable with
Student A being in the locker room with him.

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unless they want to be in a harassing environment. Pls.’ Findings and Conclusions at pp. 47-48,
¶¶ 74-76, 79. They further contend that the defendants have been deliberately indifferent to the
sexual harassment through the use of the unlawful practice. Id. at p. 48, ¶ 80.
In response to the plaintiffs’ arguments, the defendants contend that the plaintiffs have
failed to establish a likelihood of success on the merits of their Title IX claim because (1) they
have failed to show that the harassment was on the basis of sex insofar as the School District’s
policy applies to both the boys’ and girls’ privacy facilities and Title IX does not define the term
“sex” or mandate how a school district is supposed to determine who is male and female
regarding sex-segregated facilities, (2) they have failed to show that the defendants’ purportedly
harassing conduct is pervasive insofar as one plaintiff did not testify about any instance where
she encountered a transgender student in a privacy facility and the other three plaintiffs each
testified to only one such instance, and (3) they have failed to satisfy the subjective prong of a
hostile environment claim because they have only referenced generalized fear and humiliation
Defs.’ Mem. at 15-17. The defendants also assert that the risk of humiliation or harassment is
minimized for future instances because of the privacy protections in place and the alternative
facilities available to all students at BASH. Id. at 17.
The defendants further claim that the mere presence of transgender students in restrooms
and locker rooms is not severe, pervasive, and objectively offensive. Id. In this regard, the
defendants contend that Title IX does not prohibit the sharing of restroom facilities; instead, it
merely states that they can create single-sex locker rooms and bathrooms for males and females
so long as the facilities are comparable. Id. (citing 34 C.F.R. § 106.33). As long as the School
District provides privacy protection for all students, the defendants believe that they cannot
violate Title IX. Id. at 17-18.

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PYC asserts arguments similar to the defendants in support of their overall contention
that the plaintiffs have failed to show a likelihood of success on the merits of their Title IX
claim. PYC argues that the plaintiffs have failed to establish that the transgender students’ use of
the shared privacy facilities is severe, pervasive, or objectively offensive. PYC points to the
decision in Students in support of the proposition that the mere presence of transgender students
in a locker room or bathroom corresponding to their gender identity “‘does not rise to the level of
conduct that has been found to be objectively offensive, and therefore hostile, in other cases.’”
PYC Mem. at 11 (quoting Students, 2016 WL 6134121, at *32, and other cases). PYC also
asserts that the plaintiffs mischaracterize the cases they cite in support of the proposition that the
mere presence of a person of the opposite sex (PYC objects to the plaintiffs’ characterization of
transgender students as members of the opposite sex) constitutes a hostile environment under
Title IX. Id. at 12-13 (discussing cases cited by plaintiffs).
PYC goes on to argue that even if the plaintiffs were to persuade the court that the
presence of a transgender student in a locker room or bathroom, without more, is objectively
offensive, the plaintiffs’ claim still lacks a likelihood of success on the merits because they have
not shown that they were targeted on the basis of sex. Id. at 13-14. More specifically, the
School District’s policy targets all students, so the discomfort Joel Doe or Jack Jones feels is not
because of their male sex and the discomfort Mary Smith or Macy Roe feels is not because of
their female sex. Id.
As its final point, PYC points to Whitaker by Whitaker v. Kenosha Unified School
District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) in support of its claim that the
plaintiffs’ argument would “turn[] Title IX on its head.” Id. at 14. PYC notes that the Seventh
Circuit in Whitaker “joined every other federal appellate court that has considered sex

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discrimination claims brought by transgender people after Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), to affirm that laws prohibiting sex discrimination do not exclude transgender
people from their protections.” Id. Moreover, Whitaker determined that a public school’s policy
requiring individuals to use bathrooms that do not confirm the individual’s gender identity
discriminates against the individual because of the individual’s gender non-conformity, which
violates Title IX. Id. (citing Whitaker).
b.

Analysis

Title IX provides in pertinent part that “[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any education program or activity receiving Federal financial assistance[.]”
20 U.S.C. § 1681(a). 58 “[A] public school student may bring suit against a school under Title IX
for so-called ‘hostile environment’ harassment.” 59 Saxe v. State Coll. Area Sch. Dist., 240 F.3d
200, 205 (3d Cir. 2001) (citing Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999);
Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 74-75 (1992)). To prevail in a Title IX sexual
harassment claim,
a plaintiff must establish sexual harassment of students that is so
severe, pervasive, and objectively offensive, and that so
undermines and detracts from the victims’ educational experience,
that the victim students are effectively denied equal access to an
institution’s resources and opportunities.
58

This matter involves an “education program or activity” under § 1681(a). See 20 U.S.C § 1687 (stating that “the
term ‘program or activity’ and ‘program’ mean all of the operations of-- . . . (2) . . . (B) a local educational agency . .
., system of vocational education, or other school system” (emphasis added)); see also Evancho v. Pine-Richland
Sch. Dist., No. CIV. A. 2:16-1537, 2017 WL 770619, at *18 (W.D. Pa. Feb. 27, 2017) (“No party appears to contest
that Title IX applies to the [school district] and its decisions about its educational programs. . . . As other courts have
concluded, the use by students of school restrooms is part and parcel of the provision of educational services
covered by Title IX, and neither party takes issue with that.” (citation omitted)). In addition, it appears at this stage
that the plaintiffs will be able to show that the School District receives “Federal financial assistance.”
59
The Third Circuit has explained that although Title IX claims against schools were originally limited to “cases
involving harassment of a student by a teacher or other agent of the school,” “[t]he Supreme Court has extended an
analogous cause of action to students [for student-on-student sexual harassment] under Title IX.” Saxe, 240 F.3d at
205 (citation omitted).

112

[Davis, 526 U.S. at 651], 119 S.Ct. 1661. This determination “‘depends on a
constellation of surrounding circumstances, expectations, and relationships,’
including, but not limited to, the ages of the harasser and the victim, and the
number of individuals involved.” Id. (quoting Oncale [v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 82 (1998)).] The Court stressed that “[d]amages are not
available for simple acts of teasing and name-calling among school children, even
where these comments target differences in gender.” Id. at 652, 119 S.Ct. 1661.
Rather, private damages actions against the school are limited to cases in which
the school “acts with deliberate indifference to known acts of harassment,” and
those acts have “a systemic effect on educational programs and activities.” Id. at
633, 653, 119 S.Ct. 1661.
Id. at 205-06 (third alteration in original) (footnote omitted).
Although there have been a number of cases brought by transgender students claiming
that school districts violate Title IX by maintaining separate privacy facilities based on biological
sex and refusing to permit the transgender students to use the privacy facility corresponding to
the student’s gender identity, Students is the only case similar to the instant case where cisgender
students (and their parents) have sued a school district based in part on a Title IX sexual
harassment hostile environment claim. In Students, Magistrate Judge Gilbert determined that the
plaintiffs did not have a likelihood of success on the merits with respect to their Title IX sexual
harassment hostile environment claim. 2016 WL 6134121, at *30-36. The court again finds
persuasive much of the rationale set forth by Magistrate Judge Gilbert in determining that the
plaintiffs did not establish a likelihood of success on the merits of their Title IX claim.
In the first instance, as in Students, this court finds that the plaintiffs have failed to
demonstrate a likelihood of success on the merits because they have not met the “threshold
question,” i.e. that they have suffered discrimination “on the basis of sex.” Id. at *31; see 20
U.S.C. § 1681(a). As noted by the defendants and PYC, the School District treats all students at
school similarly. Under the current practice, the plaintiffs (and the other students at BASH) are
not targeted on the basis of their sex because the School District treats both male and female
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students similarly. The practice applies to both the boys’ and girls’ locker rooms and bathrooms,
meaning that cisgender boys potentially may use the boys’ locker room and bathrooms with
transgender boys and cisgender girls potentially may use the girls’ locker room and bathrooms
with transgender girls. In addition, with regard to the transgender students, both transgender
boys and transgender girls are treated similarly insofar as they, upon receiving permission from
the School District, may use the locker rooms and bathrooms corresponding with their gender
identity. Moreover, the School District is not discriminating against students regarding the use
of alternative facilities if students are uncomfortable with the current practice insofar as those
facilities are open to all students who may be uncomfortable using the locker rooms or multi-user
facilities at BASH. The School District’s similar treatment of all students is fatal to the plaintiffs’
Title IX claim. See Moeck v. Pleasant Valley Sch. Dist., 179 F. Supp. 3d 442, 448 (M.D. Pa.
2016) (concluding that plaintiff failed to support sexual harassment hostile educational
environment action where even though “the actions of the coaching staff were vulgar and
inappropriate,” “[t]he record establishes that the coaching staff were not discriminatory—they
‘harassed’ everyone on the team, male and female. They did not harass because of sex but
rather, harassed everyone regardless of their sex. . . . The coaches treated [the plaintiff] like
everyone else, poorly and immaturely”); see also Pasqua v. Metropolitan Life Ins. Co., 101 F.3d
514, 517 (7th Cir. 1996) (“Harassment that is inflicted without regard to gender, that is, where
males and females in the same setting do not receive disparate treatment, is not actionable
because the harassment is not based on sex.”); Henson v. City of Dundee, 682 F.2d 897, 904
(11th Cir. 1982) (explaining that in the Title VII context that “there may be cases in which a
supervisor makes sexual overtures of both sexes or where the conduct complained of is equally
offensive to male and female workers. In such cases, sexual harassment would not be based on

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sex because men and women are accorded like treatment . . . [and] the plaintiff would have no
remedy under Title VII”); Connell v. Principi, No. CIV. A. 04-1356, 2007 WL 3274185, at *1115 (W.D. Pa. Nov. 5, 2007) (concluding that plaintiff employee could not maintain sexual
harassment hostile work environment claim because “the record evidence shows that [the
allegedly harassing supervisor’s] offensive and harassing conduct was either directed at both
men and women or lacked the necessary gender based discriminatory animus”). 60
The plaintiffs have failed to cite to any case holding that a plaintiff can maintain a sexual
harassment hostile environment claim when the allegedly sexually harassing party treats all
individuals similarly and there is, as such, no evidence of gender/sex animus. Simply because
the plaintiffs feel a particular way which they equate to their sex does not take away from the
fact that the School District’s practice is not targeting any group or individual because of their
sex. Even if the court were to find that that the practice is based on sex, the plaintiffs ignore that
Title IX deals with “discrimination” based on sex and there can be no discrimination when
everyone is treated the same. 61

60

The cases addressing claims brought under Title VII are strongly persuasive insofar as the Third Circuit has noted
that Title IX sexual harassment hostile environment claims are “analogous” to similar claims under Title VII. See
Saxe, 240 F.3d at 205 (describing Title VII hostile environment sexual harassment claim and explaining that “[t]he
Supreme Court has extended an analogous cause of action to students under Title IX”).
61
The court is compelled to address a few of the plaintiffs’ additional arguments in support of the belief that the
defendants discriminated on the basis of sex insofar as these arguments are somewhat overstated. These statements
are (1) the female plaintiffs are concerned about males entering the girls’ privacy facilities for lewd purposes, (2) the
female plaintiffs cannot even question the presence of a biological male in their locker room, and (3) there are no
methods for excluding males who have lewd intentions until after the damage is done. Pls.’ Mem. at 34. The court
addresses this latter point first. Even in sex-segregated restrooms, the School District does not have a method of
excluding males who have lewd intentions until after the damage is done. There is no evidence in the record that a
police officer or gatekeeper is patrolling the students’ privacy facilities and even if teachers or other school
employees are near these areas, there is simply nothing stopping someone with truly lewd intentions from entering
the privacy facilities. The School District’s pre-2016-17 practice regarding the restrooms and locker rooms was
dependent on the students following the rules and, if they did not, the School District using its surveillance systems
and other tools of investigation to catch the perpetrators of any rule violations (all of which occur after the
violation). At bottom, there is nothing to physically stop an individual with bad intentions no matter how the School
District assigns bathroom and locker room usage.
Secondly, as for a purported inability of a female student to question the presence of a “male” student in the
locker room or bathroom, all of the plaintiffs testified that they had no basis of knowing whether someone was
designated a male or female at birth simply by looking at them. Their knowledge about the purported biological sex

115

Presuming the plaintiffs were able to maintain this claim because they could show that
the School District discriminated against them on the basis of their sex, the plaintiffs have still
failed to show a likelihood of success on the merits of their Title IX claim because they have not
shown that they can establish the elements of a hostile environment claim. In the first instance,
while the court has some doubts as to the level and reasonableness of the humiliation, fear,
anxiety, stress, and dignity loss caused by the School District’s practice, the court will presume
for purposes of this opinion that the plaintiffs have shown that they subjectively viewed the
School District’s practice as harassment. 62 The plaintiffs have nonetheless failed to show that
they are likely to demonstrate that the School District’s practice is so severe, pervasive, and
objectively offensive that it undermined and detracted from their educational experience.

of Students A and B were based on having known the students for a period of time and their belief that the student
was a girl or boy based on that prior knowledge but without any particular knowledge of the transgender student’s
anatomy. In addition, and as an example, Mary Smith will accept someone that looks like a stereotypical boy in the
locker room or bathroom with her as long as that person has a female external and internal reproductive system. The
court finds it more than reasonable to infer from her testimony that if she saw someone that she perceived to be a
boy (but who was assigned female at birth), Mary Smith would have reacted the same way when she fled the 700s
bathroom upon seeing Student B. Regardless, there is nothing in the record supporting the plaintiffs’ statement that
Mary Smith (or any other student at BASH) would not be able to go to school administration to report the presence
of someone they perceive to be of the opposite biological sex as it is still the School District’s policy that only
students who receive permission to use the locker room and/or bathroom corresponding to their gender identity are
permitted in those areas.
As the final point, the plaintiffs use the fear of sexual assault as a basis to justify the continued separation
of privacy facilities on the basis of biological sex and they cite to statistics by the Centers for Disease Control
showing that nearly 12% of high school girls reported having been sexually assaulted. Pls.’ Mem. at 34 (citing
Centers for Disease Control, Sexual Violence: Facts at a Glance (2012),
http://www.cdc.gov/violenceprevention/pdf/sv-datasheet-a.pdf). While is it highly alarming and troubling to know
that such a high percentage of high school female students have reported being the victim of sexual assault,
considering that the percentage does not reflect those students who do not report being assaulted, the plaintiffs
provide no statistics as to how many of those sexual assaults have occurred in a locker room or bathroom at a school
or how many of those sexual assaults have occurred in locker rooms and bathrooms in public places or schools that
have decided to permit bathroom and locker room usage on the basis of gender identity. There is no evidence of any
such horrendous misconduct occurring at BASH since the School District changed the policy there and the fear of
harm is purely speculative.
62
The facts of this case differ from Students because the court there noted that “[n]owhere . . . do Plaintiffs allege
that they ever have seen Student A undressed or that Student A has seen any Girl Plaintiff undressed or that Student
A has seen any Girl Plaintiff undressed if that Student Plaintiff wanted not to be seen in that state.” 2016 WL
6134141 at *31. Here, both Joel Doe and Jack Jones claim that they saw Student A in a bra (which appears to have
been a sports bra) and, at the time, they were both in their underwear. While there is conflicting information about
whether Student A saw the male plaintiffs in their underwear, the evidence in this matter seemingly goes beyond
“[g]eneralized statements of fear and humiliation.” Id. at *32 (citing cases in support of proposition that “[g]eneral
allegations have been held to be insufficient to establish a Title IX violation”).

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The “objective prong” of the hostile environment inquiry “must be evaluated by looking
at the totality of the circumstances[] [which] . . . may include . . . the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it [so undermines and detracts from the victims’ educational
experience, that [he or she is] effectively denied equal access to an institution’s resources and
opportunities].” Saxe, 240 F.3d at 205 (citations omitted and internal quotation marks omitted)
(alterations to original). Regarding the frequency of the allegedly discriminatory conduct in this
case, each plaintiff testified as to a single instance in which they viewed a transgender student in
a locker room or bathroom. Mary Smith saw Student B in the 700s bathroom common area
while both of them were clothed and it is unclear if Student B even saw Mary Smith before she
exited the bathroom. Joel Doe and Jack Jones saw Student A in the locker room while they were
in their underwear and while she was in shorts and a sports bra. To the best of her knowledge,
Macy Roe never saw any transgender student in a bathroom or locker room before she graduated.
Based on their testimony, none of these plaintiffs were subjected to pervasive sexual harassment
in regard to their actual interaction with transgender students in the privacy facilities at BASH.
Nonetheless, the plaintiffs point to the impact of the School District’s practice as
establishing pervasive conduct because the practice permits transgender students who receive
permission from the School District to use the privacy facilities corresponding to their gender
identity. As a result of this practice Joel Doe has ceased using the locker room to change for
gym class, has ceased changing for gym class, and uses the restrooms less frequently than he had
previously. It does not appear that the other three plaintiffs have changed their usage of the
locker room (except to the extent that Jack Jones indicated that he would conduct locker-roomwide searches for “girls” each time that he would change for gym class), but they all testified that

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their bathroom usage significantly diminished and, when they did use the multi-user bathrooms,
they were uncomfortable and concerned about the potential presence of a transgender student.
The plaintiffs have not cited to any case stating that the mere possibility of future exposure to the
alleged harassment can render a single instance of harassment pervasive.
To the extent that the court could find that the School District’s practice constituted
pervasive harassment of the plaintiffs, the plaintiffs have still failed to show that it is likely that
such harassment was severe or objectively offensive. 63 Essentially, the plaintiffs’ position is that
the presence of “members of the opposite sex,” meaning transgender students, creates a hostile
environment for the plaintiffs and other cisgender students at BASH. Although the plaintiffs cite
a number of cases to support their position that having members of the opposite sex in a privacy
facility creates a hostile environment, none of the cited cases are applicable here. The first case
cited by the plaintiffs is Lewis v. Triborough Bridge & Tunnel Authority, 31 F. App’x 746 (2d
Cir. 2002), an unpublished Second Circuit Court of Appeals decision, because the court
purportedly held that an employer created a hostile work environment when it allowed a thirdparty cleaning company to have its male employees inside of the locker room while the female
employee plaintiffs were undressed. Pls.’ Mem. at 31. Lewis is easily distinguishable from the
facts of this case insofar as (1) the female plaintiffs complained to their employer for two years
63

The parties debate whether the plaintiffs have to establish whether the harassment is “severe and pervasive” or
“severe or pervasive.” Compare Pls.’ Mem. at 36 (“Conduct need not be both severe and pervasive.” (emphasis in
original)), with PYC Mem. at 11 n.6 (“In the Title IX context . . . student-on-student sexual harassment can be
actionable only if it is severe, pervasive, and objectively offensive.” (emphasis in original)). PYC is correct that
when the Third Circuit set forth the elements of a hostile environment claim, the court did not use the disjunctive
“or” when referencing the requirements that the conduct be severe and pervasive. See Saxe, 240 F.3d at 205 (stating
that the harassment must be “so severe, pervasive, and objectively offensive”). Interestingly, while the plain
language used in Saxe appears to contemplate a plaintiff needing to show that the harassment was severe and
pervasive, the Third Circuit has also used the disjunctive when referencing this standard. See DeJohn v. Temple
Univ., 537 F.3d 301, 320 (3d Cir. 2008) (“[U]nless harassment is qualified with a standard akin to a severe or
pervasive requirement, a harassment policy may suppress core protected speech.” (emphasis added)). Also, in the
Title VII context, a plaintiff can establish a hostile work environment by showing harassing behavior “sufficiently
severe or pervasive to alter the conditions of [the plaintiff’s] employment.” Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986) (internal quotation marks omitted). Here, the court need not resolve this issue because, as
explained herein, the practice was not objectively offensive.

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about the sexual harassment by the male cleaners, and (2) they alleged that the male cleaners
“engaged in a variety of specific acts of sexual harassment, including entering the . . . women’s
locker room when female employees were undressed.” 31 F. App’x at 747. Further, the “variety
of specific acts of sexual harassment” not mentioned in the Second Circuit’s opinion also
included allegations from one of the female plaintiffs that the male cleaners were “leering at her
and would crowd the entrance to the locker room, forcing her to ‘run the gauntlet’ and brush up
against them.” Lewis v. Triborough Bridge and Tunnel Auth., 77 F. Supp. 2d 376, 377 (S.D.N.Y.
1999). Additionally, the general manager of the plaintiffs’ employer, during an inspection of the
women’s locker room, also referred to other female employees as “cunts” and “fucking
crybabies” and reportedly stated “‘[b]oss man don’t want no women with tiny hinnies [sic] on
this job.’” Id. at 378 (alteration and mistakes in original). This conduct is not similar to the facts
in this case.
The second case cited is Schonauer v. DCR Entertainment, Inc., 905 P.2d 392 (Wash. Ct.
App. 1995), which the plaintiffs reference to support the proposition that a hostile environment is
created when a male employer at a nude dance club entered a dressing room while a female
waitress was clothed and in a dressing room and restroom. Pls.’ Mem. at 31. Once again, the
plaintiffs focus on one aspect of the case and ignore the totality of the plaintiff’s evidence as to
the purported hostile environment.

In Schonauer, the plaintiff alleged that (1) during the

approximately one month that she worked at the topless nightclub, a manager regularly and
almost daily entered the women’s bathroom/locker/dressing room area, even on one occasion
when the plaintiff was inside of a restroom stall, and this conduct made her “extremely
uncomfortable;” (2) she refused to participate in the club’s nude waitress contest; (3) in
preparation for the contest, the manager told the plaintiff to fill out a card that asked about

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various sexual information that would have been broadcast to the audience during the contest; (4)
while attempting to persuade the plaintiff to enter the contest, the manager placed his arm around
her and told her that he needed her to enter the contest; and (5) the manager and another male
employee at the club tried to get the plaintiff to enter the contest (even telling her that she had to
enter it) on three occasions before eventually firing her in part because she did not enter the
contest. 905 P.2d at 813-15. The court concluded that the plaintiff set forth enough facts to
establish a claim for a hostile work environment insofar as, inter alia, (1) she was hired as a
waitress and not as a dancer, (2) she wanted to be a waitress and not a dancer and informed her
employer and management as such, and (3) the manager and the other employee “pressured her,
repeatedly and intentionally, to provide fantasized sexual information and to dance on stage in
sexually provocative ways. Id. at 822. Regarding the manager’s intrusions into the dressing
room and bathroom, the court stated that “the hostile and offensive nature of th[e] environment
[at the club] was arguably intensified by [the manager’s] intrusions into the women’s dressing
room and bathroom.” Id. Thus, the allegations of sexual harassment went well beyond the
manager’s presence in the dressing room and bathroom.
The third case cited is Washington v. White, 231 F. Supp. 2d 71 (D.D.C. 2002), for the
proposition that individuals of the opposite sex entering a locker room can create a hostile work
environment. Pls.’ Mem. at 31-32. The plaintiff in White alleged that he was a custodial worker
at the Walter Reed Army Medical Center and would go into a men’s locker room to remove his
uniform and change into his street clothes at the conclusion of his shift. 231 F. Supp. 2d at 73.
The plaintiff alleged that a female supervisor (it is unclear if she was the plaintiff’s supervisor),
in violation of the employer’s written policy, entered the men’s locker room on five to ten
occasions without knocking. Id. at 73, 74. On one occasion when she came in, the plaintiff was

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taking off his shirt. Id. at 73. After the plaintiff complained to his supervisor and another
member of management and filed a written complaint, the female supervisor “entered the locker
room, went over to plaintiff, and (without asking) reached in and took a pen out of his shirt
pocket.” Id. The plaintiff again complained and the female supervisor received a written
warning. Id. Apparently, the female supervisor was undeterred as she “‘returned to the locker
room and stood over [plaintiff] saying “I’m back. What are you going to do about it?’” Id.
(citation omitted).
The plaintiff claimed that the female supervisor’s conduct caused him to become
“embarrassed and uncomfortable” and, as a result, he would change in bathrooms and vacant
areas on other floors. Id. at 73. The court found that the plaintiff had set forth sufficient
evidence “to establish that [the female supervisor’s] conduct turned his work place into a hostile
work environment and the court could not grant summary judgment in favor of the defendant.
Id. at 80-81. Again, there are no allegations of improper conduct by the transgender students
while in the locker room or bathroom. As such, White is inapplicable.
The fourth case cited is People v. Grunau, No. H015871, 2009 WL 5149857 (Cal. Ct.
App. Dec. 29, 2009), for the proposition that girls should expect privacy in a girls’ locker room
and that a biological male staring at a girl in a locker room would shock or disturb the viewedupon girl. Pls.’ Mem. at 32. This matter involved a criminal defendant charged with loitering on
school grounds and violating a California law prohibiting individuals from annoying a child
under 18. Grunau, 2009 WL 51498457 at *1. The victim, a 14-year-old girl who was wearing
her swimsuit after swimming practice, was showering in the girls’ locker room when she saw the
defendant standing in the exit doorway. Id. The defendant “made eye contact with [the victim],
stared for about five seconds, closed the door, and left.” Id.

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On appeal from the jury’s verdict convicting the defendant, the defendant claimed that
“briefly viewing a teenager showering in a full swim suit is not conduct which would cause the
average person to be unhesitatingly irritated or offended, and [sic] essential element of the
crime.” Id. at *3 (mistake in original). In concluding that the evidence was sufficient to convict
the defendant, the California appellate court explained:
Here, defendant blithely ignores an important fact: where his conduct took place.
[The victim] was not simply rinsing off under an outdoor shower at a public pool.
She was on a high school campus, out of general public view, and inside a girls’
locker room, a place that by definition is to be used exclusively by girls and where
males are not allowed. Unquestionably, a girls[’] locker room is a place where a
normal female should, and would, reasonably expect privacy, especially when she
is performing quintessentially personal activities like undressing, changing
clothes, and bathing. Under the circumstances, jurors reasonably could find that a
normal female who was showering in a girls[’] locker room would unhesitatingly
be shocked, irritated, and disturbed to see a man gazing at her, no matter how
briefly he did so.
Id. (alterations to original).
Grunau is also inapplicable because even though the court discussed that girls would
expect privacy in a girls’ locker room, Grunau involved an adult man who was actually leering
at a 14-year-old girl while she was in a locker room. 64 It is inconceivable how this case sheds
light on a transgender student being present in the locker room, especially here where there are
no allegations of any transgender student at BASH staring at another student (and, the court
would be remiss if it was not pointed out that the defendant in Grunau had been convicted of
prior sex offenses) or doing anything remotely improper. Instead, the only testimony relating to
the transgender students is that they were in either the locker room or the bathroom with the
plaintiffs.

64

To reinforce a point made earlier in this opinion, apparently the sex-segregated bathrooms and locker rooms were
unable to prevent the defendant from entering them in the first place.

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The final case referenced by the plaintiffs is Norwood v. Dale Maintenance System, Inc.,
590 F. Supp. 1410 (N.D. Ill. 1984) because it supposedly supports their position that a hostile
environment is created by simply allowing a member of the opposite sex into a restroom. Pls.’
Mem. at 32. Norwood is clearly inapplicable here. 65 In this regard, Norwood involved a female
employee’s complaint that her employer violated Title VII when it refused to hire her to work as
a day shift washroom attendant in a men’s washroom. 590 F. Supp. at 1412-14. The employer
claimed that it could base the decision on sex because it was a bona fide occupational
qualification. Id. at 1415. The court concluded that since the employer produced sufficient
evidence that the occupants of the building in which the washroom was located “would object to
a member of the opposite sex entering their washrooms during the day to perform cleaning
duties, and that if such a procedure were instituted the procedure would have a detrimental effect
on the building.” Id. at 1417. Thus, the court concluded “that the intrusion on personal privacy
which would occur if opposite sex attendants were allowed access into the washrooms while in
use is sufficiently substantial so as to constitute a factual basis for defendants[’] sex-based
policy.” Id.
Norwood does not involve a claim for hostile environment under Title IX. While it, and
other cases throughout the United States have found bona fide occupational qualifications on the

65

The court notes that two of the plaintiffs’ four citations to Norwood are actually not to statements by the court;
instead, the court was summarizing the testimony of the employer’s expert witness. Compare Pls.’ Mem. at 32
(citing to Norwood, 590 F. Supp. at 1417), with Norwood, 590 F. Supp. at 1417 (explaining testimony of employer’s
expert in which he concluded that having opposite sex members in the washrooms “would cause embarrassment and
increased stress in both male and female washroom users” and “the invasion of privacy that would be created by an
opposite sex procedure would be extreme”). Similarly, the plaintiffs’ reference page 1418 of the Norwood decision
because the court supposedly “not[ed] that many [individuals in the building] search for another restroom if an
opposite-sex person is present.” Yet, that portion of the court’s opinion actually dealt with whether the employer
closing the washrooms while opposite-sex employees serviced them was a reasonable alternative that would have
allowed the employer to hire the plaintiff to work in the men’s washroom. 590 F. Supp. at 1418. In discussing this
alternative, the court noted that it was not feasible because during the closures “tenants would be forced to conduct
an inconvenient, time consuming and sometimes difficult search for a washroom when the need to use a washroom
may be acute.” Id. Thus, to the extent that the tenants would be searching for a different washroom, they were
doing so because the washroom was closed. Id.

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basis of sex permissible in certain circumstances, including those when privacy is an issue, they
do not support a conclusion that the presence of transgender students in the BASH locker rooms
and bathrooms is, in itself, a hostile environment under Title IX. 66
The plaintiffs have not referenced and the court has not found any case determining that
the mere presence of transgender students in a high school locker room or bathroom, the viewing
of a transgender student in a state of partial undress in a high school locker room or bathroom, or
a transgender student viewing a cisgender student (which does not appear to have not happened
in this case) in a high school locker rooms or bathroom constitutes severe, pervasive and
objectively offensive conduct that would state a cause of action under Title IX. In addition, the
court does not find that the plaintiffs have shown that they are likely to prove that the School
District’s conduct is objectively offensive because a reasonable person would not find the
practice of allowing transgender students to use the locker rooms and bathrooms corresponding
to their gender identity to be hostile, threatening, or humiliating. There is no evidence that these
students have committed any lewd acts in the locker room or bathrooms or that they have even
interacted with the plaintiffs in any way whatsoever. There is no evidence that the transgender
students have harassed the plaintiffs or any other student. All the evidence showed was that the
66

The plaintiffs also briefly mention two other cases in support of their argument that they were subjected to severe
harassment that warrant brief mention, namely New Jersey Division of Youth & Family Services v. M.R., FN-04344-12, 2014 WL 1977014 (N.J. Super. App. May 16, 2014) and City of Phila. v. Pennsylvania Human Relations
Commission, 300 A.2d 97 (Pa. Commw. 1973). The plaintiffs claim that these cases support a finding that their
exposure to transgender students in locker rooms and bathrooms “violates students’ privacy rights and places them
at risk of ‘permanent emotional impairment.’” Neither case is “remotely similar” to this case. See Students, 2016
WL 6134121, at *33. More specifically, the Commonwealth Court in City of Philadelphia concluded – in another
bona fide occupational qualification case – that “[t]o subject a girl [between the ages of seven to sixteen] to a
thorough search of her body by a male [adult] supervisor could cause not only a temporary traumatic condition, but
also permanent irreparable harm to her psyche. [In addition,] [t]o have a woman supervisor observe daily showers
of the boys at a time in life when sex is a mysterious and often troubling force is to risk a permanent emotional
impairment under the guise of equality.” City of Phila., 300 A.2d at 102-03. In M.R., the court was faced with a
finding of abuse and neglect by a mother with respect to her fourteen-year-old daughter. 2014 WL 1977014 at *1.
The abuse came to light after the girl’s father was investigated for sexually abusing his fifteen-year-old niece. Id.
As part of the investigation, the daughter reported her father having recently showered her (and in fact, he had
regularly taken showers with all of the children (boys and girls) since the children were young). Id.
It is apparent from even a cursory review of these cases that they have no application here.

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transgender students were in the facilities for their intended purposes and they conducted
themselves appropriately while in those areas.
The plaintiffs are clearly opposed to having themselves viewed by a transgender student
in a state of undress or potentially viewing a transgender student in a state of undress. They are
apparently opposed to the transgender student being in the locker room even if no one is getting
dressed or undressed. They are opposed to transgender girls being in the girls’ bathroom and
locker room to the extent that female students are tending to menstruation-related issues and do
not want those issues known to boys, even boys identifying as girls. As in Students, there are
numerous privacy protections for students at the school that significantly reduce or eliminate any
potential issues. 2016 WL 6134121, at *33-35 (discussing privacy protections and alternatives).
As explained above, the School District has four shower stalls in each of the locker rooms
that have curtains. While it is possible that a student could attempt to open those privacy
curtains as happened with Mary Smith, it is purely speculation that a transgender student is going
to do so. Other than that speculative possibility, there is no indication that the privacy curtains
do not provide the requisite privacy while in the locker room. In addition, the School District
provided sufficient evidence to show that they are committed to providing all students with as
comfortable of an environment as possible while at BASH and Dr. Cooper indicated that the
locker rooms have team rooms that could be used by requesting students to change for this
upcoming year.
With regard to the restrooms, the restrooms have stalls with locking doors that provide
privacy even in the boys’ bathrooms to the extent that those bathrooms lack dividers between
urinals. The plaintiffs focus on some of the partitions not being high enough or low enough to
provide for complete protection while in there. Despite the gaps, there is no indication that

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individuals while in the stalls cannot ensure that their privacy is maintained while inside of the
stalls. Nonetheless, even with gaps along the edges of the doors and the gaps above and below
the partitions, the plaintiffs have not shown that there is anything objectively offensive about the
plaintiffs having to use the bathrooms with a transgender student, even to the extent that it is
remotely possible that a transgender girl could potentially overhear a female student tending to
menstruation issues while in the locker room. Further, once again, as with any student’s use of
the locker rooms or bathrooms at BASH, if the student is uncomfortable, the students can use a
single-user facility to change or use the restroom and obtain the desired privacy there. 67
Accordingly, for all of the above reasons, the plaintiffs have failed to establish a
likelihood of success on their Title IX sexual harassment hostile environment claim. 68

67

The court notes that the plaintiffs contend that the defendants cannot “escape liability by requiring victims to
remove themselves from the environment.” Pls.’ Mem. at 38. The plaintiffs cite to Seiwert v. Spencer-Own
Community School Corp., 497 F. Supp. 2d 942, 954 (S.D. Ind. 2007) in support of this statement. In Seiwert, the
court determined that a jury could conclude that a school district’s actions in response to pervasive and serious
bullying from other students was clearly unreasonable when (1) the school district did not even discipline one of the
students even though that student had twice threatened to kill the bullied student, (2) the school district minimized
the threats when discussing them with the bullied student, (3) the school district took action, but only in the nature of
moving the bullied student to another classroom instead of dealing with the bullying itself, and (4) the school district
disciplined both the bullied student and the bully when the bully decided to physically assault the bullied student.
497 F. Supp. 2d at 954.
The Seiwert court did not determine that it was improper under Title IX, in itself, to try to remove the
bullied student from class with the bully. Instead, the court noted that the school district took virtually no action to
eliminate the bullying and it was apparent that simply moving the bullied student to another classroom was
insufficient to resolve the bullying. Here, we are dealing with students’ use of locker rooms and bathrooms.
Providing the students with alternative places to get changed and use the restrooms should they be uncomfortable in
the current arrangements (which may or may not actually involve a transgender student) is not even remotely
comparable to the bullying situation in Seiwert and the school district’s undeniably unreasonable response to the
bullying in that case, which included removing the bullied student from the classroom.
68
Because of the court’s resolution of the other elements to a hostile environment claim, the court has not addressed
whether the plaintiffs were denied the benefits of any educational opportunity, class, or program as required by Title
IX because the plaintiffs have not shown any actionable harassment. Nonetheless, from a grades perspective, only
Joel Doe has identified that he was negatively affected insofar as his gym class grade dropped when he declined to
dress for gym class. It is unclear whether the plaintiffs’ decision not to use the multi-user bathrooms as much (or at
all) when they all indicated that they could still access bathrooms at BASH if they needed to do so (and that they did
access the bathrooms albeit less often) would constitute a denial of an educational program or activity under Title
IX.

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3.

Pennsylvania Tort of Invasion of Privacy – Intrusion Upon Seclusion
a.

The Parties’ Arguments

For their final cause of action, the plaintiffs contend that the defendants have violated
Pennsylvania’s common law by intruding upon their seclusion. Pls.’ Mem. at 39-43. More
specifically, the plaintiffs argue that by virtue of the School District’s policy the defendants are
intruding upon their seclusion, such as when Joel Doe and Jack Jones used the bathrooms and
locker rooms, by allowing members of the opposite sex to enter into the bathrooms and locker
rooms corresponding to their gender. Id. at 40. In addition to the physical intrusion, the
plaintiffs claim that there is a visual intrusion insofar as Student A viewed Joel Doe and Jack
Jones in their underwear, and this risk will continue as long as the current practice remains. Id.
at 40-41. Further, even hearing urination or the female plaintiffs (or other female students)
tending to menstruation issues and the sounds commonly associated with that (such as the
opening of wrapping for pads and tampons) is a violation of that privacy and an intrusion into the
plaintiffs’ seclusion. Id. at 42.
The plaintiffs point out again that society has long recognized the need for separate
facilities for the biological sexes and this need for minors in school is reflected in the
Pennsylvania School Code’s requirement that there be separate facilities for boys and girls. Id.
at 41-42. They argue that the School Code’s requirement, in itself, shows that the Pennsylvania
General Assembly recognizes the need to have privacy from the opposite sex. Id.
The defendants argue that the plaintiffs are unlikely to prevail on their common law
invasion of privacy claim against them because they are entitled to immunity under the
Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541. Defs.’ Mem. at 22.
They point out that their actions do not fall into any of the eight categories of negligence that

127

constitute an exception to immunity, and the plaintiffs have not alleged that they engaged in a
crime, actual fraud, or willful misconduct. Id. at 23. Even if the court was to determine that the
defendants are not entitled to immunity, they assert that the plaintiffs have still failed to show a
likelihood of success on the merits because the defendants did not personally intrude upon the
plaintiffs’ seclusion. Id. at 23-24. Thus, the only possible claim is that the defendants are
indirectly intruding upon their seclusion by allowing transgender students into restrooms and
locker rooms consistent with their gender identity and there is no basis for finding them liable
under such a theory.

Id. at 24.

Finally, the defendants contend that any intrusion was

insubstantial and would not have been highly offensive to an ordinary reasonable person because
the overwhelming majority of cisgender students have shared school locker rooms and
bathrooms with transgender students since the beginning of the 2016-17 school year without
incident. Id.
As for PYC, it focuses on the lack of intrusion and offensive conduct by merely having
transgender students in locker rooms and bathrooms with the plaintiffs and other cisgender
students. PYC’s Mem. at 9. Instead of there being an “intrusion,” the facts merely show that
individual students, including transgender students, are using the communal facilities in the
BASH locker rooms and restrooms. Id. at 10. To the extent that the plaintiffs seek additional
privacy, there are individual toilet and shower stalls in the locker room and toilet stalls in the
multi-user bathrooms. Id.
PYC also argues that even if the presence of transgender students in the shared facilities
could constitute a privacy intrusion, the intrusion is not substantial because other people are
always in communal facilities. Id. The fact that there are additional students in these areas is not

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substantial. Id. Moreover, there is no evidence of a transgender student behaving improperly in
those communal areas. Id.
b.

Analysis

With the common law tort of invasion of privacy, intrusion upon seclusion, Pennsylvania
follows section 652B of the Restatement (Second) of Torts, which defines this tort as follows:
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person.” Harris by Harris v.
Easton Pub. Co., 483 A.2d 1377, 1383 (Pa. Super. 1984) (citing Restatement (Second) of Torts §
652B). This invasion can occur “(1) by physical intrusion into a place where the plaintiff has
secluded himself, (2) by the use of the defendant’s senses to oversee or overhear the plaintiff’s
private affairs, or (3) some other form of investigation or examination into the plaintiff’s private
concerns.” Id. (citing Restatement (Second) of Torts § 652B, cmt. b). This “cause of action also
requires that the plaintiff has a reasonable expectation of privacy.” Kline v. Security Guards,
Inc., 386 F.3d 246, 260 (3d Cir. 2004). In addition, the intrusion must “cause mental suffering,
shame, or humiliation to a person of ordinary sensibilities.” Harris by Harris, 483 A.2d at 138485 (citation omitted).
The court will first address the defendants’ claim that this tort action is barred against
them under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541-8564
(“PSTCA”). Although the defendants have included this claim in their memorandum of law in
response to the motion for a preliminary injunction and a motion to dismiss that they have filed
in this case, they did not reference this argument in their most recent filing of their proposed
findings of fact and conclusions of law. To the extent that the defendants are still asserting this

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claim with respect to this motion, the court notes that the PSTCA provides that “[e]xcept as
otherwise provided in this subchapter, no local agency shall be liable for any damages on
account of any injury to a person or property caused by any act of the local agency or an
employee thereof or any other person.” 69 42 Pa. C.S. § 8541 (emphasis added). Here, however,
as the court is dealing with a claim for injunctive relief, the PSTCA would not apply to the
plaintiffs’ claims. See E-Z Parks, Inc. v. Larson, 498 A.2d 1364, 1369 (Pa. Commw. 1985)
(“Since governmental immunity under Section 8541 of the Judicial Code extends only to liability
for damages, Petitioner must be permitted to pursue his claim against the [Philadelphia Parking
Authority] for injunctive relief.”).
This particular cause of action, by its very nature, raises a concern that the defendants
raise in passing, but without citing to any legal support. Out of the three different ways that a
defendant could intrude upon the seclusion of another person as described in section 652B of the
Restatement, only the first two situations are potentially applicable here. Therefore, the plaintiffs
could only show a likelihood of success on the merits if the defendants (1) physically intruded
into a place where the plaintiffs secluded themselves, or (2) used their senses to oversee or
overhear the plaintiffs’ private affairs.
The plaintiffs’ claim is premised on the defendants’ practice of allowing transgender
students to use the privacy facilities corresponding to their gender. The plaintiffs do not allege
and have introduced no evidence that any of the individual defendants or any employees or
agents of the School District ever personally invaded their privacy insofar as there are no
allegations or evidence that any School District employees or agents were in the locker rooms or
69

The School District would appear to fall with the definition of a “local agency” under the PSTCA and would be
entitled to governmental immunity unless the particular claim fell within one of the exceptions to governmental
immunity contained in the Act. See Wells v. Harrisburg Area Sch. Dist., 884 A.2d 946, 847 (Pa. Commw. 2005)
(“We note that local government agencies, such as school districts, are generally immune from tort liability under
the . . . Political Subdivision Tort Claims Act[.]”).

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bathrooms with the plaintiffs. The individuals that purportedly invaded the seclusion of the
plaintiffs were the transgender students, Students A and B.
The defendants briefly assert that they cannot be liable for this common law invasion of
privacy claim because they did not actually commit the tort. Defs.’ Mem. at 23-24. The
defendants do not actually cite a case in support of this argument and do not even discuss the
plaintiffs’ state law cause of action at all in their supplemental proposed findings of fact and
conclusions of law. On the other hand, the plaintiffs do not cite to a case in which any court
recognized a cause of action against a governmental entity for an intentional tort when third
parties (and not agents or employees of the governmental entity) are the ones that commit the
intentional tort.

The court has not located such a case in the Third Circuit or in the

Commonwealth of Pennsylvania. 70 The uncertainty as to whether the plaintiffs have a viable
cause of action under Pennsylvania law for this type of invasion of privacy would alone serve as
a basis for the court to find that the plaintiffs have failed to demonstrate a likelihood of success
70

The closest case that the court located that was potentially similar to the facts and claim here was a decision by the
Supreme Court of Alabama in Carter v. Innisfree Hotel, Inc., 661 So. 2d 1174 (1995). In Carter, the plaintiffs, a
husband and wife, were staying in a hotel room when they heard knocking and scratching sounds that “appeared to
emanate from behind a wall near the bathroom; the wall was covered by a mirror.” 661 So. 2d at 1177. The
plaintiffs presumed that the sound was coming from the adjacent room and they proceeded to go about their
activities in the hotel room that afternoon, which included having sexual intercourse. Id. Later that evening, the
plaintiffs found a hole in a wall that appeared to allow someone to spy on them through a mirror that was in the
room. Id. There was no identification of the individual that possibly spied on the plaintiffs.
The plaintiffs sued the company that managed the hotel for, inter alia, the invasion of their privacy. Id. at
1178. The trial court entered summary judgment in favor of the management company, and the plaintiffs appealed.
Id.
In reversing the trial court, the Supreme Court of Alabama determined that there was an issue of fact
whether an agent of the management company spied on the plaintiffs. Id. at 1178-79. The Court also concluded that
“[t]here can be no doubt that the possible intrusion of foreign eyes into the private seclusion of a customer’s hotel
room is an invasion of that customer’s privacy[.]” Id. at 1179. Most important to the instant case, however, the
Court further determined that
[e]ven if it is proven that a third party, someone other than an agent of [the management
company], caused the holes and scratches, [the management company] may be held liable for the
invasion of the [plaintiffs’] privacy. It had an affirmative duty, stemming from a guest’s rights of
privacy and peaceful possession not to allow unregistered and unauthorized third parties to gain
access to the rooms of its guests.
Id.

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on the merits. Nonetheless, for sake of completeness the court will presume that such a cause of
action exists and now determine whether the plaintiffs have established a likelihood of success
on this claim.
The court does not deny that an individual seeks seclusion in a bathroom toilet stall from
being viewed by other people outside of the stall. The cases cited by the plaintiff, Koeppel v.
Speirs, No. CIV. A. 08-1927, 2010 WL 200417 (Iowa Ct. App. Jan. 22, 2010) and Kohler v. City
of Wapakoneta, 381 F. Supp. 2d 692 (N.D. Ohio), in support of their contention that the
transgender students invaded their privacy when they were in the common areas of the bathroom
and locker room, involve alleged invasions of privacy in bathroom stalls. See Kohler, 381 F.
Supp. 2d at 697 (indicating plaintiff female police officer’s allegation that she discovered a
running tape recorder behind a trash can in a toilet stall in the police department’s women’s
room, which was left there by the chief of police); Koeppel, 2010 WL 200417, at *1 (explaining
that the plaintiff discovered a digital surveillance camera hidden inside the “small (4’ x 7’)
bathroom”). Here, there are no allegations and the plaintiffs presented no evidence that any
transgender student invaded their seclusion while they were in a bathroom stall. And similarly,
although the plaintiffs indicate that viewing a person while in a bathroom would be “considered
‘highly offensive’ by any reasonable person,” see Pls.’ Mem. at 40-41 (quoting Koeppel, 2010
WL 200417 at *3), the case cited involved an intrusion into a single bathroom stall and not the
presence of someone in the common area of a multi-user facility.
The plaintiffs claim that
[t]he objective offensiveness to the reasonable person [by having a member of the
opposite sex, i.e. a transgender person, in the bathroom or locker room with them]
is evident in the fact that we have long recognized the right to a private setting,
free from persons of the opposite sex in restrooms and locker rooms, which are
only made necessary since we often enter into a state of undress or perform

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private functions therein, which require a buffer from members of the opposite
sex that we do not require from members of the same sex.
Pls.’ Mem. at 41. As indicated earlier, the plaintiffs then point to the School Code’s requirement
of separate facilities for the sexes as Pennsylvania’s recognition of the need for privacy from the
opposite sex in facilities. Pls.’ Mem. at 41 (citing 24 P.S. § 7-740). 71
The plaintiffs do not argue that by entering the multi-user bathrooms and the locker
rooms at BASH that they attempted to seclude themselves from all students at BASH, nor could
they insofar as those areas are shared common areas with other students. As for locker rooms
generally, “[p]ublic school locker rooms . . . are not notable for the privacy they afford.”
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995). Nonetheless, they believe that it is
objectively reasonable to have their activities secluded from observation by members of the
opposite sex when in the common areas of the locker rooms and bathrooms. See Pls.’ Findings
and Conclusions at ECF p. 50 ¶ 92 (citing Kohler, 318 F. Supp. 2d at 704).
As indicated earlier in this opinion, the court does not find that it is more likely than not
(or even just likely) that Student A viewed either Jack Jones or Joel Doe while they were in their
underwear based on the evidence currently before the court because both plaintiffs have made
conflicting statements and it appears that the weight of evidence at this early stage shows that
they saw Student A and reacted only to seeing Student A on one occasion (each). Regardless,
the court does not find that a reasonable person would be offended by the presence of a
transgender student in the bathroom or locker room with them, despite the possibility that the
transgender student could possibly be in a state of undress more significant than Student A was
in this case when the male plaintiffs saw him. In addition, the mere presence of a transgender
71

While the plaintiffs referred to this section of the School Code as applying to privacy facilities generally, the
language of this section applies only to “water-closets or out-houses,” which are what we think of as bathrooms.
There is a question as to whether this section would apply to a locker room, but if the locker room contains
bathrooms, one could argue that this section of the code could apply.

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student in the common area of the girls’ bathroom washing hands, as experienced by Mary
Smith, is also not objectively offensive to a reasonable person. Moreover, the fact that the Public
School Code calls for sex-segregated water-closets and out-houses does not necessitate a finding
that the presence of the transgender student is objectively offensive to a reasonable person
because it is not determinative as to whether a reasonable person would object to the presence of
a transgender student in the locker room or bathroom. Furthermore, even though Joel Doe, Mary
Smith, and Jack Jones stated that their sole experiences with transgender students at BASH
caused them embarrassment and humiliation, it is definitely not clear that the conduct they
experienced or could experience at BASH in the future, especially considering the privacy
protections and alternative arrangements available at BASH, would cause mental suffering,
shame, or humiliation to a person of ordinary sensibilities. Accordingly, even if the plaintiffs
could maintain this type of invasion of privacy claim against the defendants, even though they
did not personally invade their seclusion while in any bathroom or locker room, the court does
not find that they have demonstrated a likelihood of success on the merits.
C.
1.

Irreparable Harm
The Parties’ Arguments

With respect to irreparable harm, the plaintiffs assert that the School District’s practice
“has stolen their right to privacy, is altering the conditions of their education by subjecting them
to sexual harassment, and constitutes an invasion of seclusion.” Pls.’ Mem. at 43. They argue
that the court should presume irreparable harm since they are able to show a violation of their
constitutional right to privacy. Pls.’ Findings and Conclusions at ECF p. 53, ¶ 108 (citations
omitted); Pls.’ Mem. at 43 (citations omitted). As for their Title IX and intrusion upon seclusion
claims, the plaintiffs claim that they will suffer irreparable harm because the sexual harassment

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and the violations of their privacy are not compensable through money damages. Pls.’ Findings
and Conclusions at ECF p. 54, ¶¶ 111, 112.
The defendants contend that the plaintiffs’ purported harm, namely the exposure of their
bodies and intimate activities to members of the opposite sex and the viewing of members of the
opposite sex in areas where they expect privacy (from members of the opposite sex), is not
irreparable because they have the opportunity to use single-user restroom and changing facilities
if they are uncomfortable. Defs.’ Mem. at 25; Defs.’ Findings and Conclusions at 42. PYC
raises a similar argument: The plaintiffs will not suffer irreparable harm because the School
District does not require them to use the common rooms of the bathrooms or the locker rooms
and can use the single-user facilities. PYC’s Findings and Conclusions at 19, ¶ 101. PYC points
out that the plaintiffs can “avoid all of the claimed harm if this Court denies their request for
preliminary injunctive relief while the case runs its course.” Id. PYC also encourages the court
to follow the reasoning in Students, which rejected a similar request for injunctive relief and
found that the plaintiffs had failed to show irreparable harm. Id. at 19, ¶ 102 (citing Students,
2016 WL 6134121, at *37, *38).

PYC also notes that the court should consider the delay in

filing the complaint and motion for a preliminary injunction, considering that Joel Doe knew
about the practice on October 31, 2016, his parents learned of the practice shortly thereafter, and
yet he did not file a complaint in this case until March 31, 2017, and did not file the motion for a
preliminary injunction until May 17, 2017. Id. at 20, ¶ 103.
2.

Analysis

Concerning a showing of irreparable harm, “the plaintiff must demonstrate potential harm
which cannot be redressed by a legal or equitable remedy following a trial. The preliminary
injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co.

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v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Thus, to support the issuance of a
preliminary injunction, a plaintiff must demonstrate a “clear showing of immediate irreparable
injury . . . or a presently existing actual threat; (an injunction) may not be used simply to
eliminate a possibility of a remote future injury, or a future invasion of rights, be those rights
protected by statute or by the common law.” Continental Grp., Inc. v. Amoco Chems. Corp., 614
F.2d 351, 359 (3d Cir. 1980) (internal citations and quotations omitted). The “risk of irreparable
harm [also] must not be speculative.” Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d
Cir. 2000) (citation omitted).

Further, if the threatened harm is compensable with money

damages, a movant seeking preliminary injunctive relief has not demonstrated irreparable harm
and the court should not issue a preliminary injunction. See Frank’s GMC Truck Ctr., Inc. v.
G.M.C., 847 F.2d 100, 102-03 (3d Cir. 1998) (“The availability of adequate monetary damages
belies a claim of irreparable injury.”); Sampson v. Murray, 415 U.S. 61, 90 (1974) (“The
possibility that adequate compensatory or other corrective relief might be available at a later
date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”);
A.O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1976) (explaining that the word
irreparable connotes “‘that which cannot be repaired, retrieved, put down again, atoned for . . ..’”
(quoting Gause v. Perkins, 3 Jones Eq. 177, 69 Am.Dec. 728 (1857)). Additionally, a “‘delay in
seeking enforcement of those rights . . . tends to indicate at least a reduced need for such drastic,
speedy action.’” Lanin v. Borough of Tenafly, 515 F. App’x 114, 118 (3d Cir. 2013) (quoting
Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985)); see FMC Corp. v. Control
Solutions, Inc., 369 F. Supp. 2d 539, 582 (E.D. Pa. 2005) (“An unreasonable delay in seeking an
injunction negates the presumption of irreparable harm.”).

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The court has already determined that the plaintiffs’ have not shown a likelihood of
success on the merits on any of their claims, so to the extent that they argue that the court should
presume irreparable harm because of the existence of a constitutional invasion of privacy or a
Title IX violation, this court need not consider this argument. Regarding PYC’s argument about
the plaintiffs’ delay in filing this action and in seeking preliminary injunctive relief, as far as the
court can tell the plaintiffs have not addressed the timing of the filing of this action or the timing
of filing the instant motion for a preliminary injunction in their submissions. PYC did not raise
this argument until submitting its supplemental proposed findings of fact and conclusions of law
on the day before the argument on August 11, 2017.
Although Joel Doe and his parents knew about the practice no later than the first couple
of days in November 2016, Jane and John Doe testified during their depositions about their
attempts to resolve their concerns by talking to Dr. Faidley in December 2016 and Jane Doe’s
conversations with a School Board member. While unclear as to when Joel Doe sought counsel
for assistance in this matter, it appears that Joel Doe had attempted to resolve this matter with the
School District outside of court and prior to filing suit, which is why Dr. Faidley referenced the
School Board’s vote to not accept the plaintiffs’ demands and to keep the current practice in
place. 72 The School Board’s vote occurred on March 28, 2017, and Joel Doe and his parents
filed the complaint three days later. The additional plaintiffs then joined the litigation on April
18, 2017. The parties did not file the motion seeking a preliminary injunction until May 17,
2017. Considering that the plaintiffs are asserting that the defendants’ practice violated their
constitutional right to privacy, their access to educational opportunities under Title IX, and their
right to seclusion, this one-month delay might, in itself, weigh against a finding of irreparable

72

It is unclear if any of the other plaintiffs, who were not parties to the suit when originally filed, were part of any
settlement negotiations.

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harm. Nonetheless, it is completely understandable why the plaintiffs did not file this action
until efforts to resolve the issue with the School District failed and the plaintiffs did not file the
instant motion until a month later. Thus, it would be unreasonable under the circumstances for
the court to find that the plaintiffs were not promptly pursuing their claims so as to weigh against
a finding of irreparable harm. 73
On a practical level, the court finds that the privacy protections that are in place at BASH,
which include the bathroom stalls and shower stalls in the locker rooms, the bathroom stalls in
the multi-user bathrooms, the availability of a number of single-user bathrooms (a few of which
will have lockers for storing items), the availability of students to store personal items in their
locker or leave those items with the gym teacher, and the availability of the team rooms in the
locker rooms (which would not involve students passing through the common area of the locker
room), and the overall willingness of the defendants to work with the students and their families
to assure that the students are comfortable at BASH, mitigates against a finding of irreparable
harm. At this point in the litigation, the court is concerned with the privacy protections available
at BASH for the upcoming school year and not whatever past protections were available to
students and whether the students knew about all of the available options or were advised of
them by the School District for the last completed school year. 74 The privacy protections
available to students in 2017-18 are more than suitable to address any privacy concerns relating
to the presence of transgender students in the locker rooms and bathrooms at BASH.

73

Although PYC encourages the court to follow the Students court on this issue, Students involved a delay of a
minimum of seven months before the plaintiffs in that case filed a lawsuit and there is no discussion from the court
as to what the plaintiffs were doing between notice of the policy and the filing of the action insofar as whether they
were actively pursuing avenues for relief outside of court. See Students, 2016 WL 6134121 at *39.
74
It does not appear that Jack Jones, Mary Smith, or Macy Roe inquired about alternative accommodations with the
defendants. Macy Roe never even discussed any concerns with the defendants, and it is unclear that Mary Smith
discussed the practice with the defendants other than reporting having seen Student B in the girls’ bathroom.

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The court recognizes that during oral argument and as noted elsewhere in their
submissions, the plaintiffs argue that the court cannot refuse to find irreparable harm based on
these alternative arrangements because the “[g]overnment may not condition a benefit on
someone waiving a constitutional right.” Pls.’ Findings and Conclusions at ECF p. 42, ¶ 44
(citing Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586 (2013)); see also id. at ECF
p. 41, ¶¶ 42, 43. This is “known as the unconstitutional conditions doctrine, [which] vindicates
the Constitution’s enumerated rights by preventing the government from coercing people into
giving them up.” Koontz, 133 S.Ct. at 2594. This argument misses the mark.
There is no evidence that the School District is coercing the students to give up their
constitutional right to privacy by providing them with additional facilities if they are
uncomfortable in the locker room for any reason, including because of the presence of
transgender students. The School District is also not denying any benefit to the plaintiffs
because they are exercising a constitutional right. They may still use the locker rooms and multiuser bathrooms at BASH without limitation. In addition, the plaintiffs (at least the three that
could be returning to BASH this year) may use the single-user facilities at BASH (to the extent
there was an uncertainty about availability for use during the 2016-17 school year). This also is
not a particular benefit conferred upon them because all students can use the single-user
facilities, including the nurse’s office with permission from the nurse.

The only possible

“benefit” being conferred is the use of the team rooms, but again, as with everything else, Dr.
Cooper indicated that the use of the team rooms would be available to any student at BASH.
There is no evidence supporting a conclusion that the School District is denying a benefit to the
plaintiffs because they are attempting to exercise a constitutional right, and there is no evidence
that the School District is attempting to coerce the plaintiffs into giving up such a right. As such,

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this argument lacks merit and the privacy protections available at BASH fully mitigate against
any harm the plaintiffs could suffer here.
On the Title IX claim, only Joel Doe indicated that his grades suffered last year because
of the defendants’ practice insofar as he refused to dress for gym class because he believed that
he did not have a suitable place to secure his belongings and he lost points toward his grade
(although he did not fail the course). 75 This concern appears to be resolved for the upcoming
school year because at least a few of the single-user facilities, including the one in the nurse’s
office and the one near the gym, will have a locker for students to secure belongings and the
defendants have indicated that Joel Doe can store his belongings in his hall locker or with the
gym teacher if he decides to change in a single-user facility without a locker. Additionally, the
plaintiffs know there are numerous alternatives for them to use the bathroom, so they should not
have to refrain from using the restroom to the extent that they did so in 2016-17 without seeking
out possibly available alternatives.
Accordingly, the court finds that the plaintiffs have not established that they would be
irreparably harmed. 76
75

In Students, the court noted the following with respect to irreparable harm showings in Title IX cases:
“[L]ack of access to classes and related programs, services, and activities can constitute
irreparable injury for purposes of a preliminary injunction.” P.P. v. Compton Unified Sch. Dist.,
135 F. Supp. 3d 1126, 1148 (C.D. Cal. 2015). Even when access is denied, though, movants may
be required to show more to establish irreparable harm. Sellers v. Univ. of Rio Grande, 838 F.
Supp. 2d 677, 687 (S.D. Ohio 2012) (noting that there is “some authority for the proposition that
an interruption in an educational program is not, in itself, an irreparable injury” and also “contrary
case law” that finds irreparable harm “especially when the denial of an educational opportunity is
coupled with other types of harm”).

2016 WL 6134121 at *37.
76
There is also an undercurrent of speculation that permeates this litigation. While BASH could have additional
transgender students seek and receive approval to use the privacy facilities corresponding to their gender identity for
the upcoming school year, the evidence in the record is that the School District is aware of three transgender
students, including Student A, who are returning to BASH for 2017-18, with at least Student A having already
received permission to use the boys’ bathrooms and locker room. Nonetheless, it is unclear whether Student A will
even have gym class with Jack Jones or Joel Doe, or whether a transgender female student will have gym class with
Mary Smith (if she is even returning to BASH for her senior year). If there is not a transgender student in gym with

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D.

Balance of Harm/Whether Non-Moving Party Will Suffer Greater Harm

Because the court has determined that the plaintiffs have failed to establish a likelihood
of success on the merits or irreparable harm, the court need not address the final two factors
because the plaintiffs’ failure “must necessarily result in the denial of a preliminary injunction.”
In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). As such, the
court will not analyze whether granting a preliminary injunction here would cause greater harm
to a non-moving party or whether the injunction would be in the public interest. 77
VI.

CONCLUSION

The plaintiffs here are required to clearly show that they are entitled to the extraordinary
remedy of a preliminary injunction. In addition, they have a particularly heavy burden because
they are seeking to change the status quo insofar as the practice in place at BASH over the past
year has been to allow transgender students to use the restrooms and locker rooms consistent
with their gender identity. With regard to their section 1983 invasion of privacy claim brought
under the Fourteenth Amendment, their sexual harassment hostile environment claim under Title
IX, and their state law invasion of privacy claim, at this early juncture and upon the current

them, there is no potential issue. To the extent that Jack Jones and Joel Doe used the multi-user bathrooms at
BASH, there was no testimony that they interacted with a transgender male in the bathroom and it is possible that
they will go the entirety of 2017-18 without doing so as well.
77
The court recognizes that in balancing the harms, the court must examine “the potential injury to the plaintiff if an
injunction does not issue versus the potential injury to the defendant if the injunction is issued.” Novartis Consumer
Health, Inc. v. Johnson & Johnson—Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002). As the
plaintiffs have failed to establish a likelihood of success on the merits of those claims, the court notes that the
balance of the harms would have favored the defendants because the effect of changing the current practice on the
transgender students would be that they will be forced to use the bathroom of their birth sex, of which they do not
identify, or end up being one of the limited number of students using the single-user facilities. Dr. Leibowitz
credibly testified as to the negative effect on the transgender students if they are unable to use the facilities
corresponding with their gender. As an additional note, and as mentioned by the School District, a preliminary
injunction ceasing the current practice could presumably lead to litigation brought by the transgender students for a
violation of the Equal Protection Clause or Title IX in light of the Evancho and Whitaker decisions. There is also
precedent in this district that gender dysphoria can be a disability under the Americans with Disabilities Act, and
there could be an issue with providing the requisite reasonable accommodations or the School District could be in
violation of the Act. See Defs.’ Mem. at 44 (citing Blatt v. Cabela’s Retail, Inc., No. CIV. A. 14-4822, 2017 WL
2178123, at *4 (E.D. Pa. May 18, 2017).

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record, the plaintiffs have not clearly shown that they are entitled to relief. In particular, they
have not demonstrated that they are likely to succeed on the merits of these claims. Additionally,
the plaintiffs have not demonstrated that they are likely to suffer irreparable injury if the court
does not issue a preliminary injunction. Since the plaintiffs failed to satisfy either of these
“gateway” factors, the court need not balance the parties’ respective harms or consider whether a
preliminary injunction is in the public interest. Accordingly, the court will deny the motion for a
preliminary injunction.
A separate order follows.
BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

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